Adverse Possession

Question 1

Adverse Possession- Policy

Answer 1

• Landowners neglect is punished/incentive for landowners to enforce rights
• Reward those who use property
• Expectations of possessor- moral/’takes root’/losing hurts more
• Quiet title/correct errors/maintain status quo
• Loss of evidence
• Mech. For redistributing wealth

Question 2

Adverse Possession-Elements

Answer 2

• actual possession
• open and notorious
• exclusive
• hostile/adverse (under claim of right or claim of title)
• continuous
• for statutory period

Question 3

Adverse Possession- Actual Possession

Answer 3

• What type of possession is a function of the type of property, location of property, and expected use of property
• If under color of title, actual possession of only a portion operates as constructive possession of all of the land described in the instrument/judgment/decree
  
  • But, if prior owner with superior title is also in constructive possession, this doesn’t work
  • But, if color of title[written claim of title] covers property owned by more than 1 person, must actually possess a portion of a person’s property in order to claim constructive possession with respect to remainder of that person’s property.

Question 4

Adverse Possession- Open & Notorious

Answer 4

• Objective standard: put a reasonably attentive landowner on notice
• Some states require AP’er to pay property taxes (Idaho is one)
• Mannillo- p. 136- if there’s a minor encroachment, actual knowledge of the landowner is required; ‘reasonably attentive landowner’ standard is not used

Question 5

Adverse Possession- Exclusive

Answer 5

• to the exclusion of the true owner

Question 6

Adverse Possession- Hostile or Adverse

Answer 6

• Hostile to true owner’s title (without his permission)
• 3 lines of authority about what possessors mental state should be:
  
  • Irrelevant- possession must merely be without true owner’s permission
    
    • Connecticut rule- does not require that an AP claim be accompanied by a knowing and intentional hostility
  • Good faith- possessor must actually believe that he or she owns the property
    Bad faith- (aggressive trespasser)- possessor must intend to take the property from the true owner
    • Maine rule- requires that an AP claim must be accompanied by a knowing and intentional hostility
    • This view is diminishing

Question 7

Adverse Possession- Continuous

Answer 7

• Continuity in use like that of an average true owner under circumstances
  
  • Howard- p.142- summer occupancy of summer beach home can be continuous possession

Question 8

Adverse Possession- For Statuatory Period

Answer 8

• If adverse possessors are in privity, they can tack their time together
  
  • Howard- p.142- tacking is judicial recognition of need for some reasonable connection between successive occupants to raise their claim of right above status of wrongdoer, applies even if the deed doesn’t describe any of the possessed property

Question 9

Adverse Possession- General

Answer 9

Personal Property

• Adverse Possession does not apply to chattels (other ways might apply via UCC, bona fied purchaser, etc.)
  
  • Open and notorious requirement would halt this
• But, in an action for replevin, the discovery rule allows the tolling of the statute of limitations to begin upon discovery
  
  • Discovery rule- in an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action
  • Thus in the O’Keeffe case, when a person finds out who has the property, the tolling begins
  • This switches the burden of proof for P to show
• Thus, we have adverse possession through the back door; not applying AP, but allows the same result

Question 10

Idaho Adverse Possession- Written Claim of Title

Answer 10

Definition: “Founding such claim upon a written instrument as being a conveyance of the property in question, or upon the decree judgment of a competent court”

Elements (Kennedy v. Schneider 2011)

1. that they entered into possession, as that term is defined by I.C. § 5-208, of the disputed property;
   
   • Usually cultivated or improved
   • Protected by a substantial enclosure
   • Used for supply of fuel or of fencing timber for purposes of husbandry or pasturage or ordinary use of occupant
   • Known farm or single lot has been improved
2. under a claim of title …
3. exclusive of other right;
4. that there has been a continuous occupation and possession of the disputed property described [in the written instrument];
5. that they have so held the property for the statutory period]; and
   
   1. 5-207: 20 years as of 2006; 5 years before 2006
6. that they have paid all taxes, state, county or municipal, *589 which have been levied and assessed upon such land according to law.
   
   • 5-210: Payment of taxes applies to ALL Claims for AP, despite what section it is in

Burden of Proof: party claiming AP must establish by C&C evidence

Question 11

Idaho Adverse Possession- Oral Claim of Title

Answer 11

Definition: “not founded upon a written instrument, judgment or decree”

Elements (Luce v. Marble 2005):

1. Actual possession (5-210, disjunctive confirmed in Luce)
   
   • Usually cultivated or improved OR
   • Protected by substantial enclosure
   • Can’t have constructive possession (5-209 - follows majority rule)
2. Open & Notorius
3. Payment of taxes (5-210)
4. Exclusive of any other right (5-209, not in case law - ID Supreme Ct doesn’t address)
5. Hostile
6. Continuous
7. For statutory period (20 years) (5-210)