Adverse Possession Flashcards
Elements of Adverse Possession
- Actual possession
- Adverse or hostile under a claim of right
- Exclusive
- Open and notorious
- Continuous
- For the statutory period
Adverse Possession can
Adverse Possession: When there is no other path to ownership…ask: WHO has been occupying the property?
- Adverse possession can be used as an affirmative defense to prevent stale claims.
- It can also give rise to an affirmative right in the adverse possessor to bring a claim to have title quieted in him.
- (Beginning of adverse possession: Code of Hammurabi)
Models of Adverse Possession
Model Policy Rationale
Limitations model = Specialized statute of limitations, prevents stale claims
Administrative model = Useful method for curing minor title defects; lengthy possession serves to demonstrate true title
Development model = Tool to facilitate economic development; allows for the reallocation of land to productive users
Personhood model = Focus on avoiding injury to adverse possessor; use has given possessor a high personal value; attachment
Adverse Possession
(1) ACTUAL POSSESSION
(1) ACTUAL POSSESSION
Majority view: what is required for actual possession depends on the type of the land and the nature of the dominion and control that a reasonable landowner would exercise
- It is possible to adversely possess only the part of the land that is actually possessed
Exception: constructive possession à if the adverse possessor is taking under “color of title” then there can be constructive possession of the property.
- “Color of title” means an adverse possessor has a claim to the land based on a defective document that purports to convey title
Adverse Possession:
(2) ADVERSE OR HOSTILE POSSESSION
(2) ADVERSE OR HOSTILE POSSESSION
- Requires non-permissive use (if the land is being used with permission then the adverse possession clock is not running)
- State of mind
Objective (growing majority rule) –> Possessor’s state of mind is irrelevant as long as (1) using land that is not his and (2) doing so without permission
Good faith –> Possessor must in good faith believe that he owns title to the land
Intentional trespass –> Possessor must
- know that he does not own the land and
- subjectively intend to take title from the true owner
TX Law –> requires a desire to appropriate the land as one’s own (but the rule is unclear). Mere occupancy is not enough.
Note: Cannot adversely possess something from a government entity
Adverse Possession:
(3) EXCLUSIVE POSSESSION
- Possession must not be shared with either the true owner or the general public
- Absolute exclusivity is not required. The adverse possessor’s possession must be as exclusive as would characterize a normal owner’s use for such land
Adverse Possession:
(4) OPEN AND NOTORIOUS
(4) OPEN AND NOTORIOUS
The acts of the possessor must be so visible and obvious that a reasonable owner who inspects the land would receive notice of an adverse claim
- Relevant question is NOT “did they know” BUT “could they have found out?
Adverse Possession:
(5) CONTINUOUS POSSESSION
(5) CONTINUOUS POSSESSION
Possession must be as continuous or sporadic as those of a reasonable true land owner – does not mandate physical occupation or use every minute
- Typically, work-related absences are reasonable and will not interrupt continuous possession
- Summer occupancy also okay
- Abandonment stops the clock, even if the person comes back
Adverse Possession: Continuous Possession Examples
Scenario 1
1994: O is the true owner; A enters adversely
1995: O dies with a will: “to B for life, remainder to C”
2010: B dies, never having entered Blackacre
** 10-year SOL. O holds in FSA.**
A owns Blackacre in FSA (acquired in 2004) – Life estate was created after the adverse possession began. C could have brought action against B for waste
Adverse Possession: Continuous Possession Examples
Scenario 2
1994: O is the true owner
1995: O dies with a will: “to B for life, remainder to C”
1996: A enters adversely
2010: B dies, never having entered Blackacre
C owns in FSA. All A was going for was a life estate pur autre vie
When B died, time restarted. Now it’s adverse possession against C.
Adverse Possession:
TACKING
Tacking –> there must be privity between the successive possessors in order to allow for tacking of time in possession
- Prior person had to meet all the elements of adverse possession too
- Privity = some reasonable connection between successive occupants of real property. There is privity if there is (1) a voluntary transfer of an estate or of possession between the possessors (2) by deed, will, intestate succession, or delivery of possession.
Adverse Possession: Tacking Samples
Scenario 1
2000: O is the owner; A enters adversely
2007: B says “get out!” A feels threatened and leaves. B enters possession.
In 2010: _____________.
O is the owner – A did not transfer anything to B.
10-year SOL. O holds in FSA.
Nobody has successfully adversely possessed.
Adverse Possession: Tacking Samples
Scenario 2
2000: O is the owner; A enters adversely
2007: A leaves the property to move in with her sister C
2007 + 6 months: B takes possession
2010:
O is the owner. A did not transfer anything to B.
Adverse Possession: Tacking Samples
Scenario 3 (abandonment)
2000: O is the owner; A enters adversely
2007: A leaves the property to move in with her sister C
2007 + 6 months: B takes possession
2008: A re-takes possession of the property and removes B
When can A take title under adverse possession?
- A abandoned the property, which stopped the clock. It restarts when she takes possession again.
Adverse Possession: Tacking Samples
Scenario 4 (forcible removal)
2000: O is the owner; A enters adversely
2007: B says “get out!” A feels threatened and leaves. B enters possession.
2007 + 6 months: A re-takes possession of the property and removes B
When can A take title under adverse possession?
2 scenarios
2010 + 6 months: A was removed, did not abandon. Clock stopped for 6 months.
2010: Because A was removed, B should not be able to harm A. Clock doesn’t stop even though A was not in possession.
