Adverse Possession Flashcards
1
Q
Adverse Possession - Basic Concept
A
- possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title to property
- title by adverse possession results from operation of statute of limitations for ejectment
-> if owner doesn’t take action to eject w/in statutory period, title vests in the possessor
2
Q
Adverse Possession - Elements
A
Continuous
Open and notorious
Actual AND EXCLUSIVE (different from prescription)
Hostile
3
Q
Adverse Possession - Continuity
A
- possession must be continuous throughout statutory period
- intermittent occupancy insufficient
- BUT constant use not required as long as possession is of a type that the usual owner would make
- also, need not be continuous possession by same person (adverse possessor can tack own possession onto periods of adverse possession of predecessors)
- LOOK OUT FOR SCENARIOS WHEN SOMEBODY OCCUPIES A HOUSE THEY THOUGHT WAS THEIRS FOR HALF THE TIME, THEN LEAVES FOR A BIT TO LIVE IN ANOTHER CITY, THEN COMES BACK
4
Q
Adverse Possession - Open and Notorious
A
- must be sufficiently apparent to put true owner on notice that a trespass is occurring
5
Q
Adverse Possession - Actual and Exclusive
A
- adverse possessor gains title only to the land they actually occupy
- cases in which occupation of entire parcel claimed not necessary: AP enters under color of title -> considered in constructive possession of all the land the deed describes, as long as in actual possession of reasonable portion of the land
- exclusivity = not shared w/ true owner or the public (could have two people though who adverse possess together -> become tenants in common)
6
Q
Adverse Possession - Hostile
A
- AP enters w/o owner’s permission
- AP’s state of mind is irrelevant
-> doesn’t matter if thought on own land or knew encroaching - if possession starts permissively, can become adverse if possessor makes clear to true owner they’re claiming hostilely
7
Q
Hostility - Co-Tenants
A
- a co-tenant would need to oust others or make explicit declaration they’re claiming exclusive domain to create adverse possession
- possession by one not adverse to others voluntarily out of possession b/c they retain right to possess all of the property
8
Q
Hostility - Grantor Stays in Possession
A
- grantor presumed to be there with permission of grantee
9
Q
Hostility - Claim of Right
A
- possessor enters under claim of right when they reasonably believe the property belongs to them (usually involves invalid deed)
-> invalid deed doesn’t give permission to be on land -> still hostile
10
Q
AP - Running of Statute
A
- statute of limitations begins to run when true owner can first bring suit
- filing suit won’t stop the period from running, but the suit must be pursued to judgment
11
Q
AP - Property Taxes
A
- most states do NOT require AP to pay property taxes, but consider such payment good evidence of claim of right
12
Q
Tacking
A
- one adverse possessor can tack to his time w/ land his predecessor’s time, so long as there is privity between predecessors
-> satisfied by any non-hostile nexus (contract, deed or will)
-> absent when possessor ousted predecessor
13
Q
Disabilities
A
- statute of limitations won’t run against a true owner who is afflicted by a disability at the inception of the adverse possession
- only the disability of the owner existing at the time the cause of action arose is considered
14
Q
Adverse Possession and Future Interests
A
- statute of limitations doesn’t run against holder of a future interest until the interest becomes possessory
-> note that if grantor has right of entry, SOL only begins to run when grantor asserts that right, not automatically once the triggering event occurs
15
Q
Effect of Covenants in True Owner’s Deed
A
- if adverse possessor uses the land in violation of a restrictive covenant in owner’s deed for statute of limitations period, they take free of the restriction
- if possessor’s use complies w/ such a covenant, they take title subject to the restriction
