Adverse Possession

Question 1

Continuous Element

Answer 1

Three Phrases:
1) Entry Phase: when the adverse possessor enters the land; required to trigger statute of limitations

2) End Phase: when the statute of limitations runs out of time; now, the adverse possessor is the legal owner of thew property by operation of law

3) Middle Phase: When the adverse possessor makes use of the property, between the entry and end phases.

Note: The “continuous” requirement is not literal - seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed (vacation home, farmland)

Question 2

Elements of Adverse Possession

Answer 2

Continuous

Open and notorious

Hostile

Exclusive

Question 3

Tacking

Answer 3

If the adverse possessor cannot satisfy the continuity requirements on her own, she can tack on her predecessor’s time on the property to satisfy the statute of limitations.

To tack the time of adverse possession of a prior adverse possessor, the current adverse possessor MUST be in privity with the prior adverse possessor. Privity is an exchange of some sort between the adverse possessors.

Question 4

Disabilities

Answer 4

The statute of limitations will not run against a true owner who has a disability at the time the adverse possession begins (infancy, insanity, or imprisonment).

The disability MUST exist when the trespasser enters the property.

Question 5

Interruption by the True Owner

Answer 5

A true owner can interrupt the adverse possession period by ejecting the adverse possessor. This will STOP the adverse possession clock.

Question 6

Open and Notorious Element

Answer 6

An adverse possessor’s use must be open and notorious, meaning that the use must be such that it would put a reasonable true owner on notice of the adverse use.

The use CANNOT be hidden. The trespasser must use the property as if she was the true owner.

Question 7

Hostile Element

Answer 7

Possession must be adverse to the owner’s interest. It is a claim of competing title.

Majority Rule: ignores the possessor’s state of mind

Minority Rule: inquires into the adverse possessor’s state of mind
- Good Faith: the adverse possessors claim is hostile if she thinks the land is unowned or that she is the rightful owner. This is adverse possession based on a mistake.
- Bad Faith: the adverse possessor knows that the land is not hers and she tries to acquire title to the property by adverse possession. This is adverse possession based on an aggressive trespass.

Question 8

Exclusive Element

Answer 8

An adverse possessor cannot share possession with the true owner.

If two people possesses the property together, they can acquire title together by adverse possession. They acquire title as tenants in common.

Question 9

Constructive Adverse Possession

Answer 9

Adverse possessors enters under color of title from an invalid instrument (fraudulent deed) and occupies a portion of the property described in the instrument. The adverse possessor is in actual possession of the occupied lan d and constructive possession of the remaining land described in the deed.

*In other words, if adversely possessed under color of title, they get all the land, not just the occupied part