Adverse Possession

Question 1

Adverse Possession - Basics

Answer 1

• Allows a person in unlawful possession of property to acquire good title. Until title is acquired, person is a trespasser.
• When title is acquired, it dates back to possessor’s original entry
• Govt property cannot be adversely possessed
• 2 basic rationales
  
  • Punish original owner for sleeping on their rights
  • Reward adverse possesser for earning good title/using the land

Question 2

Adverse Possession - 4 Elements

Answer 2

• Use must be:
  
  • Continuous for statutory period
  • Open and notorious
  • Hostile
  • Exclusive

Question 3

Adverse Possession - Continuous Element Requirements

Answer 3

• Continuous is not literal; infrequent use is acceptable if use is consistent with type of property (summer homes)
• Tacking: if current possessor cannot satisfy statutory period alone, can tack time to prior possessor’s time if there is privity between them
• SOL will not run against an owner who is disabled by injury, infancy or imprisonment (others) at the time the adverse possession begins (if it comes later, SOL runs)
• True owner can interrupt SOL clock by ejecting adverse possessor. SOL clock then starts over.

Question 4

Adverse Possession - Open and Notorious Element

Answer 4

• Use must be open and notorious
• Must be such that a reasonable true owner could be put on notice of the use
  
  • Cannot hide the use; must be used as though adverse possessor was the true owner

Question 5

Adverse Possession - Hostile Element Requirements

Answer 5

• Possessor’s use must be adverse to true owner’s interest
• Majority Rule: possessor’s state of mind is irrelevant
• Minority Rule: possessor’s state of mind is inquired
  
  • Good faith: Possessor reasonably believed they owned the land; mistake
  • Bad faith: Possessor must know that they do not own the land but they are on it anyway; aggressive trespass

Question 6

Adverse Possession - Exclusive Element Requirements

Answer 6

• Adverse possessor cannot share possession with true owner
• But if 2 adverse possessors share possession with each other, both can acquire rights as tenants in common

Question 7

Adverse Possession - Scope of Possession

Answer 7

• Traces the legal boundaries of the property
  
  • Exception: possessor enters under color of title from an invalid instrument (fraudulent deed, i.e.), but only occupies part of the land. This possessor is considered in constructive possession of remaining land described in the deed
• Includes rights to subsurface land unless another owns that already
• Easements can also be acquired by A.P. (prescription)