Adverse Possession

Question 1

Actual possession

Answer 1

The commitment of the land to a particular use or type of possession by entry, enclosure, improvement or some other type of domination

Question 2

Making out Domination of land

Answer 2

On the land and in control of the property

Temporary vs. regular,
leaving items with the expectation they will be there when you return
Fencing and landscaping

Question 3

Exclusion

Answer 3

Exercising the authority to keep others off the property

Question 4

What if there is another person who is adversely possessing the property?

Answer 4

The possessor must be the only one to claim ownership at that time, he may give to another, and an adverse possessor will continue so long as there is privity.

Question 5

Adverse possessor transferring interest

Answer 5

This is tacking. Successive adverse possessors can tack together their periods of adverse possession only if there was privity (transfer of interest through deed or similar document or the person is the heir or devised of the previous possessor). But still needs to meet statutory time period

Question 6

Open and notorious

Answer 6

Rule:Possession that puts a reasonably diligent owner on notice that a claim is being made

This does not require the owner to have knowledge that it’s their property but for others to see it and think that the person is in possession of the property. If it is visible and of a character that would be sufficient to alert a reasonable true owner as to the existence and nature of possessor’s claim of title- regardless of true owners actual knowledge

Question 7

Adverse possession

Answer 7

Adverse possession is the expiration of the statute of limitation on the owner’s right to sue for ejectment. The statue of limitations begins to run when the trespass is actual, open and notorious, exclusive, hostile and continuous

Question 8

Manillo v. Gorski

Answer 8

D raised home and as a result had to extend steps, which ended up on P’s property. D thought it was her own land though.

Court held: intention or knowledge of invading someone else’s land is not required. If an innocent trespasser of a small portion of lan cannot without great expense remove or eliminate the encroachment or it would be an undue hardship the true owner may be forced to convey the land

Question 9

Hostile

Answer 9

Non permissive possession that is contrary to the owner’s interest as an owner.

i.e. Makes decisions the owner would makes such as paying taxes, who is on the property, how the property is used

Leaving the property when the owners asks is not hostile

Question 10

Hostile is?

Answer 10

NOT PERMISSIVE!

Permission defeats hostility

Question 11

Continuous

Answer 11

All the elements of adverse possession must be continuous (unbroken) throughout the statutory period of time

Question 12

Continuous possession may be established even though…

Answer 12

There is temporary absence so long as there is no intention to abandon the land

I.e. the land is used regularly for only a certain period of time (I.e. summer vacation)

Or an adverse possessor is jailed

Question 13

arguably there is a 6th element to adverse possession

Answer 13

good faith

Question 14

When two people have title of the land (e.g. siblings gained title through a will) but only one occupies it, does that person have title by adverse possession

Answer 14

No this defeats hostility and exclusive unless one exiles the other

Question 15

Adverse possession against persons with disability

Answer 15

A disabled person (e.g. Minor, unsound mind, imprisoned), who has title when the adverse possessor begins to possess the property, after 10yr statute expiration, may bring action within 5 years after the disability has been removed

A disability is immaterial unless it existed at the time when the cause of action accrued

Question 16

Does adverse possession run against the government?

Answer 16

No

Question 17

Color of title

Answer 17

A claim founded on a written instrument that is for some reason defective and invalid (e.g. Grantor does not own the land conveyed or the deed is improperly executed).

A person only takes possession under color of title for the land described in the defective deed

A forged deed does not constitute color of title

Some courts say claimant cannot possess under color of title unless they possess in good faith

Question 18

Ad version possession by color of title

Answer 18

Someone may enter a land under color of an invalid deed

Color of title meets the hostility requirement of adverse possession

Question 19

Constructive possession

Answer 19

Unoccupied land is considered to be in constructive possession of its true owner. So owner is legally in possession of the land even if owner doesn’t physically occupy land.

A claimant cannot establish constructive adverse possession under color of title without taking actual possession of some portion of the land described in the instrument

Question 20

Personal property and adverse possession

Answer 20

Discovery rule- 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

Statute of limitations is typically shorter (3-5yrs)

Question 21

Tacking

Answer 21

Rights that are attended to first trespasser are transferred to a second

Rule: In order for tacking to prevail there must be intention of continuity between trespassers