Adverse Possession

Question 1

What are the 6 elements of Adverse Possession?

Answer 1

1. Actual entry and possession
2. Open and notorious
3. Exclusive
4. Continuous
5. Adverse or hostile
6. Statutory period

Question 2

3 purposes of AP?

Answer 2

1. Sleeping owners
2. Earning
3. Certainty

Question 3

For the 3 purposes of AP, what is certainty?

Answer 3

mechanism to quiet title and clear defects after sufficient time has passed

Question 4

For the 3 purposes of AP, what is earning?

Answer 4

Rewards possessor for productive acts of occupancy

Question 5

For the 3 purposes of AP, what is a sleeping owner?

Answer 5

A true owner who sits on rights for too long

Question 6

3 Adverse or Hostile Titles?

Answer 6

1. Objective (Majority)
2. Good Faith
3. Aggressive or Knowing

Question 7

Of the Adverse/Hostile standards what is the Objective Standard?

Answer 7

State of mind is irrelevant

Question 8

Of the Adverse/Hostile standards what is the good faith standard?

Answer 8

I thought I owned it

Question 9

Of the Adverse/Hostile standards what the aggressive or knowing trespass standard?

Answer 9

I knew I didn’t own it, but I intended to make it mine

Question 10

What is the majority regarding the adverse standard?

Answer 10

The objective standard.

Question 11

Marcia, Jan, and Cindy. The home is held by the three daughters as tenants-in-common. Marcia and Jan are married and have homes of their own; Cindy is still single and remains in the family home. For 12 years after the property distribution, Cindy is the only one who occupies the house, pays taxes, maintains the property, and makes improvements to it. She pays no rents to either of her sisters. The three sisters have no communications about the house during these 12 years. One day in the 13th year after her sole occupancy began, Cindy is killed in a tragic car accident. Cindy leaves all of her property to her stepbrother, Bobby. The statutory period is 10 years. What interest does Bobby inherit from Cindy: (a) a 1/3 tenant-in-common share of the property; or (b) 100% ownership, due to Cindy having taken full title by adverse possession?

Answer 11

(a). Bobby owns a fractional share as a tenant-in-common with Jan and Marcia. Although Cindy had possession that was actual, continuous, exclusive, and open and notorious for the statutory period, her possession was not adverse or hostile to her sisters’ rights of possession. The courts reject claims by a co-tenant that her long-term sole occupancy, without more, constitutes adverse possession of the non-occupying co-tenants’ interests. That’s because occupancy by one co-tenant is not by itself hostile to the rights of the other co-tenants; any co-tenant is entitled to occupy the premises without rent, and does not need the others’ permission to do so. Because Cindy didn’t “oust” either of her co-tenant sisters (i.e., she didn’t affirmatively reject any attempts by them to move in with her), she never adversely possessed her sisters’ fractional interests. Therefore, Bobby takes only Cindy’s fractional 1/3 share.