Adverse Possession Flashcards
What is adverse possession?
The taking away of title from a prior owner and granting it to one in longstanding possession. There are three elements: physical element; mental element; time element
What are the elements for adverse possession?
Actual, open, notorious, exclusive (physical element); hostile (mental element); continuous for statutory period (time element). Also possession must be exclusive (meaning exclusive of the true owner; which is not true of an easement by prescription).
What is the statutory period in most cases?
On exam, use 20 years unless told otherwise.
What does open and notorious mean?
Possession that is held by an adverse possessor in a manner that the true owner of the property would be likely to discover in the ordinary course of events or in the ordinary course of the true owner inspecting his or her property. Owner knew or should have known if bothered to look. If the adverse possession is on property that would not generally be inspected by or whose occupation would not be obvious to the true owner, then the adverse possession is ineffective. Thus, to adversely possess subterranean property, such as part of a coal mining shaft or an oil well, it is often necessary to show that the true owner did, in fact, know of the possession.
What is hostile?
Possession that is without the consent of the owner and the assertion of which is in conflict with the property ownership interests of the owner. In other words, This element requires that the possessor must enter and possess the property without the owner’s consent and that the possessor must possess the property with the intent of remaining on the property permanently. It does not require that the possessor actually claim that he or she has a legal right to possess the property. It is enough that the possessor intends to remain on the property in perpetuity.
What does it mean that the possession must be exclusive?
Means that the adverse possessor must exclude the true owner. If both are residing together, the possessor’s use is not adverse to the owner. But possessor need not occupy or use all the property to gain title if use excludes owner. Finally, an adverse possessor may be able to get a right to part of the property, even if not exclusive, if the use of that portion of the property was in fact exclusive.
What does the element of continuous mean?
possessor must have uninterrupted possession of the land for the duration of the statutory period. Of course, this does not mean that the possessor must be on the land for 24 hours a day, seven days a week, 365 days a year. Rather, this element requires that the possessor occupy the land to the degree and with the amount of usage that the average owner would occupy the property. Degree of possession that is considered to be continuous and uninterrupted will vary depending upon what the property is typically used for. If the property is used as a permanent residence, then the adverse possessor would have to live in the house as the average person would live in a permanent residence. If the house is a vacation house, then its occasional use at sporadic times during the year for the statutory period could be sufficient.
What happens if adverse possessor abandons the property?
If adverse possessor abandons property, without intent to return, and then comes back, clock restarts.
What is tacking?
Tacking is a rule that allows subsequent adverse possessors to add their periods of possession together provided that there is privity between the successive possessors and the transfer made voluntarily.
How does adverse possession apply in the case of subsequent owners?
If the owner transfers title and there is an adverse possessor, the period continues to run against the new owner.
What happens if more than one person is an adverse possessor?
If period runs, they become joint owners.
Does adverse possession apply to public land?
Generally not.
Is title by adverse possession recordable? Can owner show marketable title in a real estate transaction?
Generally not until after an action to quiet title. The second way a seller can show marketable title is by proving that he or she came to own the property by adverse possession. Parties who come to own property via adverse possession cannot show a chain of title because there is no documentation that is filed that will indicate that ownership of property was changed by adverse possession. Proof of acquisition by adverse possession can be in the form of a court decision stating that the possessor owns the property. It is unclear whether title acquired by adverse possession that has never been adjudicated (decided) in court can constitute marketable title.
