Adverse Possession Flashcards
Actual possession
The commitment of the land to a particular use or type of possession by entry, enclosure, improvement or some other type of domination
Making out Domination of land
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
Exclusion
Exercising the authority to keep others off the property
What if there is another person who is adversely possessing the property?
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.
Adverse possessor transferring interest
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
Open and notorious
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
Adverse possession
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
Manillo v. Gorski
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
Hostile
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
Hostile is?
NOT PERMISSIVE!
Permission defeats hostility
Continuous
All the elements of adverse possession must be continuous (unbroken) throughout the statutory period of time
Continuous possession may be established even though…
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
arguably there is a 6th element to adverse possession
good faith
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
No this defeats hostility and exclusive unless one exiles the other
Adverse possession against persons with disability
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
Does adverse possession run against the government?
No
Color of title
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
Ad version possession by color of title
Someone may enter a land under color of an invalid deed
Color of title meets the hostility requirement of adverse possession
Constructive possession
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
Personal property and adverse possession
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)
Tacking
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
