Adverse Possession

Question 1

Adverse possession generally

Answer 1

Adverse possession allows one who has wrongfully entered a property to obtain possession of that property when there has been actual possession, which is open and notorious, and the possession is hostile continuously for the statutory period.

Question 2

Adverse possession requirements

Answer 2

1. Actual possession
2. Open and notorious
3. Hostile possession
4. Continuous for the statutory period

Question 3

Actual possession

Answer 3

The claimant must actually have exclusive use of the property; which means he must physically occupy the premises.

1. Exclusive use: The true owner must be excluded from the premises and the property may not be open to the public.
2. Partial possession: A reasonable percentage of the property must be actually used. A claimant may only claim possession of the portion of the property actually used. (E.g.: If a claimant occupies 1 acre of 200- acre parcel, he may only claim adverse possession of the 1 acre.)
3. Tenant possession: The claimant may lease the premises to a tenant to satisfy the actual possession element.

Question 4

LAND ACQUISITION ISSUES

Answer 4

Many issues in real property center around the acquisition of real property or an interest in real property. Typically property is acquired by adverse possession or by an inter vivos transfer, such as through a land sale contract or by granting a deed, or by a devise in a will.

Question 5

Open and notorious and visible possession

Answer 5

The claimant must possess and use the property in a way that a typical owner of similar property would use the property. The use must be sufficiently open to put the true owner on notice of the trespass by the adverse possessor. (E.g.: If a typical owner would only use the land in the summer months, the adverse possessor may only use the land seasonally also.)

Question 6

Hostile possession

Answer 6

Possession of the land must be without the owner’s consent.

1. Hostile possession is simply not permissive; it does not mean that the possession must be done in a hostile manner.
2. Boundary disputes: Where one property owner occupies land, mistakenly thinking it is his own but it actually belongs to the adjacent property owner, this possession will be deemed hostile (e.g., building built over property line).
3. Ouster of a co-tenant is required to find a hostile possession with concurrent property owners since all co-tenants have equal right to possession of the property. Ouster occurs when a co-tenant claims an exclusive right to possession and refuses occupancy to his co-tenant.

Question 7

Continuous use for the given statutory period

Answer 7

1. Statutory period: At common law it is 20 years; it varies among the states but is typically at least 15 years.
2. Continuous possession means that the owner may not reenter to regain possession during the statutory time. If he does, the adverse possessor’s time for possession starts over.
3. Seasonal use of a property may still satisfy the continuous possession element if this is the way a typical owner of similar property would use the land. The intermittent activities must be of the sort only done by true owners.
4. Tacking: One adverse possessor may tack his time with the time of another adverse possessor to meet the required statutory period for adverse possession if the two adverse possessors are in privity

Question 8

Effect of Adverse Possession

Answer 8

Adverse possession does not convey marketable title. However, the title can be perfected and made marketable by means of a judicial action to quiet title.