Adverse Possession Flashcards
Adverse Possession
Losing title to to something without giving the other person permission
- does not transfer ownership in the conventional sense – NO Conveyance
- if owner runs out the statute of limitations, adv. poss becomes the new owner
Rationales of Adverse Possession
1) Avoiding stale claims: Clears up old titles and clarifies who owns what CHEAPLY
2) Quieting Titles/ Correcting title errors
3) Protecting Personal attachments
Elements of Adverse Possession
1) Actual Entry
2) Exclusive Possession
3) Open and Notorious
4) Hostile/Adverse/ Claim of Right possession
5) Continuous and Uninterrupted
Adv. Possessor’s States of Mind
1) Objective Standard
2) Good Faith Standard
3) Aggressive Trespass Standard
Ad Coelum Doctrine
To whomsoever the soil belongs, he owns also the sky and to the depths
Color of Title
obtaining title through a defective deed
Constructive Possession
Actual possession under color of title of only a part of the land covered by the defective writing extends to ALL that the writing describes
Actual Entry
Entry (without permission/ adverse to the rights of the owner)
- Starts the statute of limitations
- Any disability statute of limitations begin and are based @ this point
- The area you enter and use is the area you will be able to claim through adverse possession
Exclusive Possession
Requires that the adverse claimant’s possession and use cannot be shared with the true owner or the public in general
Open and Notorious
** Q of Facts
The Adv. possessor’s acts and use of the land are the sort that would put reasonable attentive property owners on notice that someone is on their property
– If owner should have noticed, notoriety requirement is met
Hostile/Adverse/Claim of Right
The claimant’s possession CANNOT be permissive!!
–You have to establish that you are claiming that you have rights to own the property
** Must be hostile upon entry!
Continuous and Uninterrupted
Satisfy ALL elements of adv. possession continuously over the statutory period
- not necessarily CONSTANT but as often as a normal owner
- If true owner interrupts the period of possession, possession is interrupted.
The Sleeping Principle
The purpose of adv. possession is to penalize the negligent and dormant owner for sleeping upon his rights
Objective Adverse Standard
- state of mind is irrelevant
- ALL that matters is the conduct of the adverse possessor (using the land in the way that one would expect from the true owner)
Q of Fact
The Good Faith Adversity Standard
“I thought I owned it”
- Requires a good faith claim
The Aggressive Trespass Adversity Standard
“I didn’t care who owned it” “I knew who owned it, but I wanted it anyway”
** Must intend to take the property and make it their own; even if they don’t know who owns it OR they know it doesn’t belong to them.
Settling of Boundary Disputes
1) Agreed Boundaries - there is a boundary uncertainty, an oral agreement is enforceable if the neighbors accept the line for a long period of time
2) Acquiescence - long acquiescence is evidence of an agreement
3) Estoppel - if complainant doesn’t complain while the other party is violating the boundary, courts will not allow complainant to take land back b/c the other party has invested $$ in building/improving on that boundary.
Fulkerson v. Van Buren
in order to est. hostility, you have to know it’s not yours and still want to claim
b/c they didn’t know the land was someone else’s and they weren’t trying to claim against Fulkerson until too late. The church was not asserting THEIR claim to the land against the title owner.
Hollander v. World Mission Church
Boundary dispute claims
- if your (good faith) claim has been made based on misreading of deed, you have not est. hostility
- if your (good faith) claim has been made based on mistaken belief alone, court will uphold your claim (Objective standard)
Howard v. Kunto
- Kunto able to tack b/c of privity
- All landowners able to claim the land they’re actively possessing due to adv. possession – NO claim to actual deeded lands.
Privity
succession from A to B, by transfer of interest in the land by deed (sufficient relationship, connection; succeeding former adv. possessor)
Tacking
Adding time of adverse possession from one adverse possessor to the next; ONLY if privity between the possessors (through sale/transfer of title)
**NO TACKING btwn two independent adv. possessors
Disability Statutes
extended statutes of limitations for if the owner has disability (age, mental or physical or emotional disability); *****based on disability @ time of actual entry!!!!
