Adverse Possession

Question 1

Adverse possession

Answer 1

A trespasser may acquire title to another’s property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s rights
-Requirements:
1) Continuous for the statutory period
2) Open and notorious
3) Actual and exclusive
4) Hostile

Question 2

Adverse posssession-continuous for the statutory period

Answer 2

Possession must be similar to an ordinary owner’s use of the property
-Daily possession is not required if an ordinary user would not use the property daily (e.g. winter cabin)

Question 3

Adverse possession-open and notorious

Answer 3

Trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly
-Owner need not actually know of the trespasser’s use

Question 4

Adverse possession-actual and exclusive

Answer 4

Must possess a reasonable portion of the property to the exclusion of the owner and the public

Question 5

Adverse possession-hostile

Answer 5

Possession must be without owner’s permission
-No knowledge or intent requirement (i.e. trespasser need not intend to adversely possess)
-Leasehold: if a tenant stays in possession after a lease has expired, he is presumed to have permission (i.e. tenancy at sufferance arises, as opposed to the beginning of an adverse possession period)

Question 6

Adverse possession-Statute of limitations

Answer 6

• Disability: SOL does not begin to run if the true owner was under some disability when the adverse possession began
• Future interests: SOL does not run against future interest holders until the interest becomes possessory

Question 7

Adverse possession-Restrictive covenants

Answer 7

Will not run with the land if the adverse possessor’s use of land violated the covenant; but covenant will run if the adverse possessor’s use complied with the covenant

Question 8

Adverse possession-Color of title

Answer 8

A claim of title to property not actually owned
-Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property

Question 9

Adverse possession-Govt. land

Answer 9

Cannot be acquired through adverse possession

Question 10

Adverse possession-Leasing

Answer 10

Adverse possessors can lease a portion of the land to a third party and still possess the property

Question 11

Adverse possession-Non marketable title

Answer 11

Title taken by adverse possession is not marketable, unless there has been an action to quiet title

Question 12

Adverse possession-Tacking

Answer 12

• Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors
• Must be successive: there cannot be gaps between periods of adverse possession
• Privity: requires privity between successive adverse holders
  -Satisfied if subsequent possessor takes by descent, decise, or by deed purporting to convey title
  -I.e. tacking not permitted if one adverse claimant ousts the preceding claimant

Question 13

Adverse possession-Concurrent owners

Answer 13

Co-tenants may not adversely possess each other’s interests unless ouster has occurred
-I.e. to adversely possess a co tenant, the co tenant must be excluded from the land for the statutory period
-The statutory period begins once exclusion begins