Adverse Possession

Question 1

Adverse Possession

Answer 1

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

Question 2

Rationales of Adverse Possession

Answer 2

1) Avoiding stale claims: Clears up old titles and clarifies who owns what CHEAPLY
2) Quieting Titles/ Correcting title errors
3) Protecting Personal attachments

Question 3

Elements of Adverse Possession

Answer 3

1) Actual Entry
2) Exclusive Possession
3) Open and Notorious
4) Hostile/Adverse/ Claim of Right possession
5) Continuous and Uninterrupted

Question 4

Adv. Possessor’s States of Mind

Answer 4

1) Objective Standard
2) Good Faith Standard
3) Aggressive Trespass Standard

Question 5

Ad Coelum Doctrine

Answer 5

To whomsoever the soil belongs, he owns also the sky and to the depths

Question 6

Color of Title

Answer 6

obtaining title through a defective deed

Question 7

Constructive Possession

Answer 7

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

Question 8

Actual Entry

Answer 8

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

Question 9

Exclusive Possession

Answer 9

Requires that the adverse claimant’s possession and use cannot be shared with the true owner or the public in general

Question 10

Open and Notorious

Answer 10

** 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

Question 11

Hostile/Adverse/Claim of Right

Answer 11

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!

Question 12

Continuous and Uninterrupted

Answer 12

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.

Question 13

The Sleeping Principle

Answer 13

The purpose of adv. possession is to penalize the negligent and dormant owner for sleeping upon his rights

Question 14

Objective Adverse Standard

Answer 14

• 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

Question 15

The Good Faith Adversity Standard

Answer 15

“I thought I owned it”

- Requires a good faith claim

Question 16

The Aggressive Trespass Adversity Standard

Answer 16

“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.

Question 17

Settling of Boundary Disputes

Answer 17

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.

Question 18

Fulkerson v. Van Buren

Answer 18

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.

Question 19

Hollander v. World Mission Church

Answer 19

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)

Question 20

Howard v. Kunto

Answer 20

• • 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.

Question 21

Privity

Answer 21

succession from A to B, by transfer of interest in the land by deed (sufficient relationship, connection; succeeding former adv. possessor)

Question 22

Tacking

Answer 22

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

Question 23

Disability Statutes

Answer 23

extended statutes of limitations for if the owner has disability (age, mental or physical or emotional disability); *****based on disability @ time of actual entry!!!!