Adverse Possession Flashcards
What is adverse possession?
When interest in property is transferred without prior owner’s consent
Applicable to both land and chattel
Which elements must be proved for adverse possession?
Adverse Possession must be:
“Alan eats only nachos and cheese, seriously.”
1) actual and exclusive
2) open and notorious
3) adverse
4) continuous for
5) statutory period
What is “actual and exclusive “ element for AP?
Actual: actually be on the property
Exclusive: exclude others of property by exercising ownership rights
What is “open and notorious” element for AP?
Open: not hiding
Notorious: give notice – noticed by ordinary person
What is “adverse” for AP?
State of mind - three types:
1) aggressive trespasser: knew it was someone else’s property
2) good faith: mistakenly took
3) objective standard: state of mind doesn’t matter
(the fact that he possessed property is adverse)
On exam: mention all three, if jurisdiction doesn’t use certain theory, choose (3-objective) and move on!
What is “continuous” element for AP?
Possession can’t be sporadic, but continuous; no gaps
Adverse possessor occupies, uses, and posses like original owner would
What is the “statutory period” element for AP?
Depends on the state!
Adverse possession normally has to be for 20 years, but can be 7
What is “color of title”?
Refers to a claim on a written instrument (a deed, will) that is defective and invalid
Would be analyzed under “adverse” element
What is tacking?
The ability to combine the time of adverse possessors to meet the statutory period.
*Adverse possessors must have privity! (i.e. color of title)
What is tolling?
Prevents clock for statutory period to start due to true owner’s “disabilities” at the start of AP
Why? - it’s unfair to start clock if true owner can’t do anything legally about the AP
*Disabilities only count at the beginning of AP
