ADVERSE POSSESSION Flashcards
objectives of adverse possession:
- adverse possession doctrine should protect the reasonable reliance of a person who has enjoyed long-standing possession without interference or objection by the true owner.
- adverse possession doctrine should discourage owners from “sleeping on their rights” and encourage owners to be vigilant and promptly identify and resolve possessory encroachments.
- adverse possession doctrine should encourage owners to act promptly and resolve possessory disputes.
Continuous and Exclusive Possession for the Statutory Period:
requirements for continuous
- consistent with the sort of possession we would expect from an owner of such land.
- exercise dominion and control
- no abandonment
Hostile Possession or Possession Under Claim of Right
Permission and “Unknown” Boundary Encroachments
How should adverse possession law characterize such unexplained and unknowing possession – as “hostile” or “permissive”?
the overwhelming majority of courts would presume that Key’s unexplained and unknowing occupation of Easton’s land was hostile (nonpermissive).
Under this view, the evidentiary burden shifts (practically speaking) to Easton. Key’s possession is treated as hostile unless Easton presents evidence to rebut the presumption of hostility; to do so, Easton would have to present evidence that he had in fact granted Key permission to occupy that portion of his land.
Color of Title
This term is used to describe an instrument that purports to convey title to a particular parcel of land, but where the instrument itself is defective and fails to convey any property interest at all.
NOTE:
Properly understood, then, the “hostility” of possession is measured by the objective character of that possession, and the message that such possession should send to a reasonable person in the position of the true owner. The majority of American jurisdictions, and nearly all reputable scholars, have recognized this and have concluded that the adverse possessor’s state of mind – what they subjectively know – is irrelevant to the question of whether their possession is hostile and under claim of right.
NOTE:
Properly understood, then, the “hostility” of possession is measured by the objective character of that possession, and the message that such possession should send to a reasonable person in the position of the true owner. The majority of American jurisdictions, and nearly all reputable scholars, have recognized this and have concluded that the adverse possessor’s state of mind – what they subjectively know – is irrelevant to the question of whether their possession is hostile and under claim of right.
What are the common law standards for adverse possession?
The Elements;
(“AN ECHO”)
Actual - establishing some physical presence
Notorious - under a claim of right
Exclusive - not sharing with the owner/others
Continuous - meet the statutory time period
Hostile - not by permission of the owner; test: claimant acted toward the land as though he owned it [class]
Open - available for the owner to see; owner must know [class]
Tolling:
“Disabilities” statutes typically address this concern by “tolling” the statute –
This prevents the statute from beginning to run until the disability is removed, or allows the statutory period to run, but gives the owner a specified number of years after the disability is removed in which to bring their cause of action.
Hostility – The Objective View 1
we would judge hostility by evaluating the objective nature of the claimant’s acts of possession under the existing circumstances. If there are no facts or circumstances that clearly demonstrate that the claimant’s possession is permissive, then we would characterize the claimant’s possession as hostile.
Hostility – The Objective View
?Suppose Easton makes this argument: “I didn’t appreciate that Key’s claim was hostile because I didn’t even realize she was encroaching on my land. It was just a few feet – and I had no idea exactly where the line was. Had I known, I’d have acted sooner. “ Should this argument defeat Key’s adverse possession claim?
The overwhelming majority of American courts would reject Easton’s argument – on the assumption that as an owner, he should know where his boundary line is (and thus should be able to recognize Key’s fence as a visible encroachment across that line).
NOTE:
Continuous and Exclusive Possession for the Statutory Period
Traditionally, courts have concluded that once an adverse possessor abandons possession without the intention to return, the possessor’s claim to possession ends, as the (former) possessor would no longer be subject to an action in ejectment by the true owner to recover possession.
The continuous requirement dictates that the possessor’s claim should be of a character such as one might expect from an owner of land,
NOTE:
Continuous and Exclusive Possession for the Statutory Period
Traditionally, courts have concluded that once an adverse possessor abandons possession without the intention to return, the possessor’s claim to possession ends, as the (former) possessor would no longer be subject to an action in ejectment by the true owner to recover possession.
The continuous requirement dictates that the possessor’s claim should be of a character such as one might expect from an owner of land,
Continuous and Exclusive Possession for the Statutory Period:
Exclusive
Acts in a fashion that reflects the claimant’s exercise of dominion and control over the land in question.
(Facts that would tend to prove the possessor’s “exclusive” possession will also typically demonstrate that the possessor’s claim satisfies both the “open and notorious” and “hostile” standards (at least in those jurisdictions that adopt the majority “objective” view of the hostility requirement, where hostility is judged by the possessor’s conduct and not the possessor’s state of mind).
[i]n order to change a permissive or otherwise non-hostile possession into one that is hostile…
~There must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed
~clear, positive and continuous disclaimer and disavowal of the title of the true owner brought home to the latter’s knowledge;
NOTE:
Continuous and Exclusive Possession for the Statutory Period:
Tacking:
Courts have traditionally permitted two or more successive periods of adverse possession to be tacked together, as necessary to permit the current possessor to satisfy the requisite statutory period, so long as the successors stood in the relationship of privity. Stella and Frank would stand in a relationship of privity so long as (a) each exercised possession over the land in question and (b) Frank (the current possessor) received the right to possession by virtue of a legal transfer from Stella (the former possessor), either by deed, by devise, or by inheritance.
NOTE:
Continuous and Exclusive Possession for the Statutory Period:
Tacking:
Courts have traditionally permitted two or more successive periods of adverse possession to be tacked together, as necessary to permit the current possessor to satisfy the requisite statutory period, so long as the successors stood in the relationship of privity. Stella and Frank would stand in a relationship of privity so long as (a) each exercised possession over the land in question and (b) Frank (the current possessor) received the right to possession by virtue of a legal transfer from Stella (the former possessor), either by deed, by devise, or by inheritance.
presumption of hostility
the burden upon the true owner to offer evidence indicating that the possession was permissive.
Continuous and Exclusive Possession for the Statutory Period
Al and Dorothy are co-owners of the land. As co-owners, Al and Dorothy have a co-equal right to enjoy possession of the land.
?Can Al quiet title against Dorothy and asserts that he has obtained individual fee simple title to the land by adverse possession?
In order for Al’s possession to be considered sufficiently “exclusive” for the statutory period to run against Dorothy, Al must “oust” Dorothy – that is, Al must physically interfere with Dorothy’s attempt to enjoy her right to possession of the land or take other conduct that would sufficiently signal to Dorothy that he intends to exclude her from enjoying her right to possession.
