Adverse Possession Flashcards
Basic Concept
possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title to real property.
if an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor.
Elements
COAH
Continuous
Open and Notorious
Actual and exclusive
Hostile
Continuous
Constant use by claimant is not required as long as possession is of a type that a usual owner would make.
Also, there need not be continuous possession by the same person; an adverse possessor can tack her own possession onto the periods of adverse possession of her predecessors
Open and Notorious
The AP’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring
Actual and Exclusive
An AP will gain title only to land they actually occupy.
If an AP enters under color of title (meaning an invalid deed), she is deemed to be in constructive possession of all the land that the deed describes, as long as she is in actual possession of a reasonable portion of that land.
Hostile
The hostility requirement is satisfied if the possessor enters without the owner’s permission. Note that the AP’s state of mind is irrelevant.
Hostile - Co-Tenants: Ouster Required
Possession by one co-tenant is not adverse to the other co-tenants voluntarily out of possession because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration that they’re claiming exclusive dominion to create AP.
Claim of Right
A possessor enters under claim of right when they reasonably believe that the property belongs to them - usually because they have an invalid deed.
Invalid deed does not give individual permission to be on the land. When someone assumes possession with what they mistakenly believe is valid title, the possession is hostile and adverse. Most state use claim of right instead of or interchangeably with hostile.
Running of SOL
SOL begins to run when the true owner can first bring suit.
Filing a suit will not stop the period form running, however; the suit must be pursued to judgment
Tacking
One adverse possessor may tack on his time with the land his predecessor’s time, so long as there is privity between the possessors. Privity is satisfied by any non-hostile nexus, such as a contract, deed, or will.
By contrast, privity is absent when the possessor acquires possession by ousting his predecessor in possession.
Disabilities
the SOL will not urn against a true owner who is afflicted by a disability at the inception of the AP.
Only the disability of the owner existing at the time the cause of action arose is considered.
AP and Future Interests
SOL does not run against a holder of a future interest until the interest becomes possessory.
Effect of Covenants in True Owner’s Deed
If an AP uses the land in violation of a restrictive covenant in the owner’s deed for the SOL period, they take free of the restriction.
Land that Cannot be Adversely Possessed
Title to government-owned land and land registered under Torrens system cannot be acquired by AP.
