Adverse Possession Flashcards
What does adverse possession do?
- After the running of the statute of limitations on the claim to ejectmentTransfers title to the property to the trespasser/occupier
When does the statute start running for adverse possession?
Only starts to run when there is open and notorious possession, not just “intermittent trespass”
Adverse possession only terminates interests that it is (blank) to
Adverse to
Can adverse possession terminate non-possessory interests such as timber, covenants, and easements?
Yes, but statute only satrts to run when the adverse possessor seeks to stop enforcement of those interests seperate from the claim against the title owner of the property
True of False:
For adverse possession, the statute of limitations starts to run on future interests at the same time the statute starts to run on the actual property as well
FALSE
Tricky question huh. Adverse possession never includes future interests because statute will not start to run until interest vests
Six Elements of Adverse Possession
- Open and Notorious
- Actual Possession
- Hostile
- Continuous
- Exclusive
- For the period determined by the applicable state’s statute of limitations
Adverse Possession: Open and Notorious requirement
What is required
- Possessory acts must be sufficiently visible and obvious to put a reasonable owner on notice that her property is being occupied by a non-owner with the intent of claiming possessory rights;
- May be constructive: Actual knowledge is not required, based on what an owner should “reasonably” have noticed upon reasonable physical inspection
Adverse Possession: Actual Possession
What use is required and
What does it depend on
- Ordinary use to which the land is capable and such as an owner would make of it
- Depends on the nature of the land and specific facts
Adverse Possession: Hostile Requirement
Good Faith v. Bad Faith
- Intent / claim of right varies by state
- Regardless of subjective belief → intent to possess; “treat as if you own”
- Requiring good faith → anti-squatter rule; “believe you own” and reasonable basis for that belief; this is the rule in CO
- Requiring bad faith → not common; demonstrates good lawyering
Adverse Possession: Hostile Requirement
Permissive/unilateral acts by the owner do what?
- Unilateral act of the true owner will NOT necessarily defeat the adverseness of possession (unless it is an action filed for ejectment); usually, clear evidence of acknowledgement by the adverse possessor is required
➢ Ziegler story example: true owner sends letter saying he gives permission, possession still going to be adverse unless the adverse possessor acknowledges the permission granted…
Adverse Possession
Hostile Requirement
What can be the result of a close relationship between the true owner and the adverse possessor
Close relationships: Some courts have implied permissive use, so cannot be adverse
Adverse Possession
What does the Continuous Requirement require?
Significant interruption does what?
Continuing throughout the statutory period without any sign of interruption or abandonment
NO abandonment or significant interruption of possession
➢ If there is a significant interruption, then the SOL stops running and the process has to be started all over again!
➢ Significant interruption must be abnormal within the circumstances; possible that taking a beach week vacation would not be considered a significant interruption
➢ If the title holder files suit for ejectment, that is a significant interruption; SOL clock stops at the DATE of filing
Adverse Possession
Exclusive Requirement
Two parts
- 1) Use that would be expected of a title holder of the land in question
- 2) Possession not shared with the true owner
- May acquire joint title with another adverse possessor
- Does not necessarily mean that all persons must be effectively excluded
Adverse Possession
For the Period Determined by the Statute of Limitations
What is Colorado’s SOL?
What happens to SOL when ejectment is filed?
Satute of Limitations is 18 years in Colorado
When an ejectment is filed, the SOL stops running
Adverse Possession
What is Tacking?
What does it require?
When one adverse possessor starts the SOL running then leaves and you, the second adverse possessor, take over and the SOL continues to run!
Requires privity between possessors: purchase, k, gift, inheritance
• This means that buyers should…
- Title search to ensure the seller is the actual owner AND
- Physically inspect premises for evidence of open and notorious use to eject any potential adverse possessors
Adverse Possession:
What does it mean to be “In Privity”?
What will establish privity?
If you are in privity you stand in the shoes of the previous owner and can therefore tack the running of the SOL clock
➢ Any voluntary transfer or surrender of the property is sufficient to establish privity
➢ If the SOL clock is running and the true owner conveys title to another, the time is tacked so the new true owner only has whatever time remains in the hourglass in order to get a claim for ejectment
THE CLOCK DOES NOT RESET WHEN THE LAND IS SOLD!
Adverse Possession
Disabilities and Tolling the SOL
What is the policy and what four disabilities are usually included?
• Tolls (or extends statute of limitations) but disability must be “existing at the time cause of action arises” - when the statute of limitations starts to run
• Usually includes:
Insanity
Minority of age
Imprisonment
Military absences
Adverse Possession
Tolling Example
Owner is sane in 2000, goes insane in 2006 and regains sanity in 2012;
The applicable SOL is 7 years or 3 years after disability.
- When would the SOL be satisfied if AP started in 2000?
- If AP started in 2006?
- If AP started in 2000: 2007 (disability must be present at time when possession starts)
- If AP started in 2006: 2015 (always the longer of the two periods)
Adverse and Prescriptive Use:
Is it possible to get an affirmative easement for Open and Notorious use?
Yes, usually a shorter SOL than that for adverse possession
What type of easement can be acquired through perscriptive use?
What will courts look for?
Only an Affirmative Easement can be acquired
Look for:
Constructive record notice?
Constructive inquiry notice?
Pathway on the land would give notice BUT more than just what you can see!
i.e. You also have to look at what is reasonably permissable
➢ Courts are very strict when it comes to prescriptive easements and increasing the burden or changing the nature of the burden of the easement
Adverse Possession
Two part question here….
- Courts are very (Strict or liberal?) when it comes to prescriptive easements and increasing the burden or changing the nature of the burden of the easement
- Courts are very (Strict or Liberal?) when it comes to lessening the burden of the easement…
- Strict
- Liberal
Adverse Possession
What does it mean if something is Under the Color of Title?
Do majority of states require this?
• Something in writing which, at face value, professes to pass title but which does not do it
• Majority states do not require this;
BUT if required → shorter statute of limitations; constructive notice is presumed for entire deed even if only a portion was actually possessed
(either from want of title in the person making it or from a defect in mode of conveyance)
What is the purpose of adverse possession?
Two purposes.
- To promote security of title (protect justified expectations)
- To prevent claims going stale
Adverse Possession
The SOL starts to run as soon as your property rights are violated.
- What happens f a reversion in fee simple is concerned, when does the SOL start running?
- What about for other types of possessory interests? Like timber, restrictive covenant on commercial use, affirmative easement etc?
- If a reversion in fee simple is concerned, the SOL does not start running until the O gets his reversion
- The specific possessory right has to be violated in order for the SOL to start running
