Adverse Possession

Question 1

Adverse Possession Elements

Answer 1

1. Actual possession that was
2. Exclusive
3. Visible – open and notorious
4. Continuous, and
5. Without the owner’s permission – hostile or adverse

Question 2

Burden of proof(Fork)

Answer 2

1. Majority rule – clear and convincing evidence (higher standard because of the sensitivity of the matter)
2. Minority rule – preponderance of the evidence (just like any other civil case)

Question 3

Tacking

Answer 3

• time from a previous owner who adversely possessed can be added together if there was ‘private of estate’ between the previous owner who adversely possessed and the current adverse possessor (if you buy it, get it as a gift, inherit it, etc. some relationship with the previous owner), but if the new owner adversely possessed from previous adverse possessor then time doesn’t add up for purposes of the statute

Question 4

Justification

Answer 4

• All lawsuits have a statute of limitations, we want to people to assert their rights within a reasonable time

Question 5

Establish your claim

Answer 5

1. adverse possessor can bring a quite-title claim,
2. or it can be used as a defense when the “true” owner sues to eject you

Question 6

Actual possession

Answer 6

• for adverse possession you have to actually possess the land in question, constructive possession is not enough (this rule is different for color of title)

Question 7

Open and notorious

Answer 7

• it must be visible so that a reasonable owner would be on notice that someone is possessing their land as if they owned it – this is an objective test, the owner need not actually know
  
  • The opinion of neighbors is good evidence – did it look like the guy owned the property?

Question 8

Continuous

Answer 8

• if the statute is 10 years it can’t be 5 years and then another 5 years, it must be continuous
  
  • Caveat: the adverse possessor need not be on the land 24/7, rather it depends on what type of property it is
  • So if it’s a summer cabin, then if you go up there every summer for the duration of the statute of limitations then it’s yours (Howard v. Kunto)

Question 9

• Adverse or hostile

Answer 9

• possession cannot be with permission from the land owner, otherwise you are a licensee and cannot adversely possess
  
  • If it’s not clear, the presumption is that there’s no permission. The burden is on the “true” owner to show that there was permission

Question 10

Adverse possessor’s state of mind with regard to permission 4 rules.

Answer 10

1. Majority rule: objective – as long as there actually was no permission, the possessor’s state of mind is irrelevant; (See Yourik v. Mallonee) (AP wins even though they knew it was prop owned by another.)
2. Possessor must have “Claim of right” such as color of title to succeed in an adverse possession claim looks like a subjective test, but in most states this test is actually a varianton the first. States that req. COR don’t require proof of intent, just that they used the prop like a normal owner
3. Possessor must prove that he knew there was no permission and he possessed it anyway (bad faith)
4. Super minority rule: adverse possessor must possess in good faith – doesn’t have to color of title, any mistaken possession in good faith will do (this started in CO because popular opinion got mad over a very publicized adverse possession case)

Question 11

Statutory period

Answer 11

ranges from 5 years to 40 years depending on the state, average is roughly 10-15 years

Question 12

Tooling

Answer 12

• in many states if the “true” owner is either (1) a minor or (2) is incompetent or (3) is imprisoned, the statute won’t begin to run until the ‘disability’ is removed

Question 13

You can only adversely possess a possessable interest

Answer 13

• so if you adversely possess land that is 10 years into a 25 year lease, you get it till the remainder of the lease, and then it goes back to the original owner
• Also, if you possess land zoned for residential and use it for commercial for 20 years, you cannot adversely possess that because it is not a possessable interest

Question 14

NY changed its adverse possession law in 2008

Answer 14

• abolishing adverse possession in most border disputes. Under the new rule, you can only adverse possess by building on the land, other encroachments are deemed permissive
• The NY law requires good faith for border disputes, otherwise NY has an “objective” test

Question 15

Color of title

Answer 15

• where it appears that someone was granted a title to land, but really was not
  
  • This could be because the grantor didn’t have proper title,
  • There was a defect in the document (missing a signature)
  • The deed wrongly describes the land being conveyed
  • It was transferred through a faulty procedure (sheriff possess the land in tax seizure, but doesn’t follow the proper procedure)

Question 16

Constructive possession

Answer 16

in a color of title case you don’t have to actually possess all the land you are claiming, if it’s in the description of the invalid deed, and you possess part of the land, it is presumed that you possess the entire thing. So if you live in a house under color of title you are also constructively possessing the backyard (as opposed to for regular adverse possession claims you only get the land that you actually possessed) (Romero v. Garcia)

• Exception: if the true owner is actually possessing that part of the land then you will not get it under constructive possession (unless they do so as your tenant in which case you are actually possessing it if they pay you rent for example)

Question 17

Color of title split in consequences

Answer 17

• Some states lower the number of years required to obtain adverse possession when the owner has color of title.
• A few treat as prereq for AP
• Land described in the title as conclusive evidence of the property that is being adversely.

Question 18

Prescriptive Easements

Answer 18

Similar standards to Adverse Possession similar raise in the burden of proof as well

Question 19

Prescriptive Easement: Acquiescence (FORK)

Answer 19

• some courts, acquiescnece merely means that the owner did not assert her right to exclude
• some courts means the landowner must have known about the use and passively allowed it to continue without formally granting permission. (Sparling v. Fon du Lac Townshhip.
• Alternatively it could mean a reasonable owner would or should have known of the use, duplicating the req of open and notorious b/c only O and N if it is sufficient to put a reasonable person on notice. Hodgins v. Sales

Question 20

Prescriptive Easement; Permission presumption(4 Forks)

Answer 20

• Maj - Nonpermissive
• Sig Min - permissive Harambasic v. Owens
  
  • b/c “neighborly gesture”.
• Some courts permissive only if it can be shown that there was a community custom to allow such uses on the land of others.
• Some states protect owners from prescriptive easements over large bodies of unenclosed land under a “neighborhood accommodation exception” where the owners could not reasoanbly know of passings over the land

Question 21

Prescriptive Easement; Good Faith Problem

Answer 21

• Community Feed Store v. Northeastern Culvert Corp - good faith mistake
• Warsaw v. Chicaco Metallic Ceilings, Inc. - clearly knew they were using neighbor’s land
  
  • Still prevailed because they were within the SOL
    *

Question 22

Acquisition by the public (old and modern rule with FORK)

Answer 22

• Old Rule - no public PE.
• Modern Rule - Yes, but usually a presumption of permission for public use so easlily defeated.
  
  • Some states have statutes providing that use by the public of a road can create a public highway (idaho)
  • a few states have used this doctrine to give prescriptive rights in the public to use beaches for recreational purposes.