Adverse Possession

Question 1

what is adverse possession generally?

Answer 1

situation where possession for a statutorily prescribed period of time can (if certain elements are met) ripen into title to real property

Question 2

what must happen for possession to ripen into title? (COAH)

Answer 2

possession must be…
Continuous (for the statutory period)
Open and notorious (visual and visible)
Actual and exclusive (literal occupation by possessor exclusive of true owner)
Hostile (without true owner’s consent)

Question 3

when is possession sufficiently continuous?

Answer 3

possession is uninterrupted and/or of the type that the usual owner would make
**NOTE = constant possession is NOT required BUT intermittent periods of occupancy are NOT enough

Question 4

does continuous possession have to be by the same person?

Answer 4

NO (adverse possessor can TACK her own possession onto periods of adverse possession of her predecessors)

Question 5

when is possession open and notorious?

Answer 5

when it is sufficiently apparent to put owner on notice that trespass is occurring

Question 6

what does actual possession mean?

Answer 6

physical, literal occupation
** NOTE = will gain title only to the land they actually occupy

Question 7

under what circumstance can an adverse possessor claim title to all of the land when she doesn’t actually occupy all of the land?

Answer 7

when the possessor enters under color of title (by invalid deed), she is deemed to be in constructive possession of all the land that the deed describes SO LONG AS she is in actual possession of a REASONABLE PORTION of that land

Question 8

what does exclusive possession mean?

Answer 8

possessor is not sharing with the true owner or the public

Question 9

what do 2+ adverse possessors (acting together) take as?

Answer 9

tenants in common

Question 10

when is possession hostile?

Answer 10

when the possessor enters without the owner’s permission

Question 11

is the adverse possessor’s state of mind relevant to determining hostility?

Answer 11

NO

Question 12

when does the SoL begin to run for adverse possession?

Answer 12

when the true owner can first bring suit

Question 13

will filing a suit stop the SoL from running?

Answer 13

NO (must be pursued to judgment)

Question 14

is an adverse possessor required to pay taxes on the property?

Answer 14

NO (but payment is good evidence of claim of right)

Question 15

when may an adverse possessor tack on to his time with the land his predecessor’s time?

Answer 15

so long as there is privity between the possessors (any non-hostile nexus)

Question 16

when is privity between possessors absent? (for tacking purpose)

Answer 16

when the possessor acquires possession by ousting his predecessors

Question 17

what is the effect of disability of the OWNER on SoL?

Answer 17

SoL will NOT run against a true owner who is afflicted by a disability at the INCEPTION of the adverse possession (when cause of action first accrued)

Question 18

what are some common examples of sufficient owner disability?

Answer 18

insanity, infancy, imprisonment

Question 19

when will an adverse possessor take WITHOUT being bound by restrictive covenant?

Answer 19

when the possessor uses the land in violation of the covenant during the SoL period

Question 20

when will an adverse possessor take SUBJECT TO a restrictive covenant?

Answer 20

when the possessor uses the land in compliance with the covenant

Question 21

when does the SoL for adverse possession begin to run against a holder of a future interest?

Answer 21

only once the interest becomes possessory