Adverse Possession

Question 1

What are the elements of adverse possession?

Answer 1

1. Continues for the statutory.
2. Open and Notorious
3. Hostile and
4. Exclusive
5. Actual

Question 2

What are the three phases of the continuous element?

Answer 2

1. Entry phase: when the adverse possessor enters the land; required to trigger the applicable statute of limitations.
2. End phase: when the statute limitations runs out of time; now, the adverse possessor is the legal owner of the property by operation of law.
3. Middle phase: when the adverse possessor makes use of the property, between the entry in the end phases.

Question 3

Can seasonal or infrequent use satisfy the continuous requirement?

Answer 3

Yes

• May suffice if they use is consistent with the type of property being possessed (vacation home, land at a summer camp etc)

Question 4

What is tacking?

Answer 4

If the adverse possessor cannot satisfy the continuity requirement on her own, she can tack on her predecessors time on the property to satisfy the statute of limitations.

Question 5

What is needed to tack on time?

Answer 5

To tack the time of the adverse possession the prior adverse possessor, the current adverse possessor must be in privity with the prior adverse possessor.

•Privity is an exchange of some sort between the adverse possessors.

Question 6

How does disabilities affect the statute of limitations?

Answer 6

The statute of limitation will not run against a true owner who has a disability at the time the adverse possession begins.

The disability must exist when the trespasser enters the property.

Question 7

What are common examples of disabilities?

Answer 7

• legal insanity
• infancy
• imprisonment

Question 8

How can a true owner interrupt an adverse possessor’s possession period?

Answer 8

By ejecting the adverse possession. This will stop the adverse possession clock.

Question 9

How can an adverse possessor satisfy the open and notorious required?

Answer 9

Use must be such that it will put a reasonable true owner on notice of the adverse use.

• Use cannot be hidden; the trespasser must use the property as if she is the true owner.

Question 10

How is the hostile element satisfied?

Answer 10

Position must be adverse to the owners interest. It is a claim of competing title.

• majority rule: Does not require into the adverse possessor state of mind.

Question 11

How is the exclusive element satisfied?

Answer 11

An adverse possessor cannot share possession with the true owner.

Question 12

What is constructive adverse possession?

Answer 12

Adverse possessor enters under color of title from invalid instrument (fraudulent and deed) and occupies a portion of the property described in the instrument.

• The adverse possessor is an actual possession of the occupied land and constructive possession of the remaining land described in the deed.
• includes rights to subsurface, unless those rights already belong to a third-party.
• easements can also be acquired by adverse possession (or prescription).