Adverse Possession

Question 1

5 Rights in Ownership of Property

Answer 1

1. Possess it
2. Use it
3. Exclude others from it
4. Transfer it
5. Destroy it (in some cases)

Question 2

6 Elements of Adverse Possession

Answer 2

Continuous
Hostile/adverse
Open and notorious
Actual
Time (for the statutory period)
Exclusive

Question 3

3 Justifications for Adverse Possession

Answer 3

1. Encouraging development/productive use of land
2. Correcting problems with deed descriptions
3. Protecting personhood

Question 4

Statutory Period for Adverse Possession

Answer 4

20 years

Question 5

Actual Possession

Answer 5

The claimant must physically use the property in the same manner that a reasonable owner would. Acts necessary to meet this requirement vary from parcel to parcel, depending on the nature, character, location of the land, and the uses to which it may be devoted.

There is an important exception if the adverse possessor occupiers the property under “color of title.”

Question 6

Exclusive Possession

Answer 6

A claimant can acquire title only to land that he or she occupies. Claimant treats the property as though he or she owns it. Claimant excludes third parties to the extent a reasonable owner would do so. Possession must not be shared with either the true owner or the general public.

Question 7

Open and Notorious Possession

Answer 7

Use of the land must be visible and obvious, such that an owner who made a reasonable inspection would be made aware of the adverse possessor’s presence. It is not necessary to show that the true owner obtained actual knowledge of the claim, or that the owner made an inspection.

Question 8

3 Approaches to Determine Hostile/Adverse Element

Answer 8

1. Objective test
2. Good faith test
3. Bad faith test

Question 9

Objective Test

Answer 9

1 of 3 approaches to measure hostility element of adverse possession. Possessor’s state of mind is irrelevant. The possessor uses the land as a reasonable owner would use it, without permission from the true owner. This is the test used by the majority.

Question 10

Good Faith Test

Answer 10

1 of 3 approaches to determine hostility element of adverse possession. Possessor must believe in good faith the he or she owns the property.

Question 11

Bad Faith Test

Answer 11

1 of 3 approaches to determine hostility element of adverse possession. Also called Intentional Trespass Test. The adverse possessor must know that he does not actually own the land AND subjectively intend to take title from the true owner.

Question 12

Continuous Possession

Answer 12

Continuous possession during the statutory period. The required continuity is measured by the location, nature, and character of the land. Claimant’s acts of possession need only be as continuous, or sporadic, as those of a reasonable owner.

Question 13

Tacking

Answer 13

Successive periods of adverse possession by different persons may sometimes be combined together to satisfy the statutory requirement. Permissible if the successive claimants are in privity with each other.

Question 14

Privity

Answer 14

Some relationship establish between the parties in question.

Question 15

6 Cases on Adverse Possession

Answer 15

1. Gurwit v. Kannatzer
2. Van Valkenburgh v. Lutz
3. Fulkerson v. Van Buren
4. Tioga Coal v. Supermarkets
5. Howard v. Kunto
6. Minor v. Minor

Question 16

Gurwit v. Kannatzer

Answer 16

Issue of actual possession
Gurwit used land he thought was his (chopped firewood, cleared brush, etc.)

Question 17

Van Valkenburgh v. Lutz

Answer 17

Lots of statute from New York. Land deemed to be possessed and occupied, and no others, must be protected by a substantial inclosure and must be usually cultivated or improved.

Question 18

Fulkerson v. Van Buren

Answer 18

Question of hostility. By asking for quitclaim deed, Van Buren is acknowledging that someone else owns the land. Hostile element requires claimant treat property as his own and not someone else’s.

Question 19

Tioga Coal v. Supermarkets General Corp

Answer 19

Shows use of the objective test to determining if hostile element is satisfied. Intent doesn’t matter, as long as the possessor does not have permission to use the property. If all other elements are met, hostility is implied.

Promotes efficient use of property and personhood

Question 20

Howard v. Kunto

Answer 20

Case where surveyors screwed up and land described in owners’ deeds did not match actual property owned. Issue of continuous element of adverse possession with seasonal occupancy. Issue with tacking/privity (was there a relationship between parties?)

Question 21

Minor v. Minor

Answer 21

Case with ex-daughter-in-law. Hostile element in question. Did she have permission from the state owners (in laws) to live on the property with her husband? Was there a mistake in not giving jury requested instruction?