Adverse Possession

Question 1

What does adverse possession do?

Answer 1

• After the running of the statute of limitations on the claim to ejectmentTransfers title to the property to the trespasser/occupier

Question 2

When does the statute start running for adverse possession?

Answer 2

Only starts to run when there is open and notorious possession, not just “intermittent trespass”

Question 3

Adverse possession only terminates interests that it is (blank) to

Answer 3

Adverse to

Question 4

Can adverse possession terminate non-possessory interests such as timber, covenants, and easements?

Answer 4

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

Question 5

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

Answer 5

FALSE

Tricky question huh. Adverse possession never includes future interests because statute will not start to run until interest vests

Question 6

Six Elements of Adverse Possession

Answer 6

1. Open and Notorious
2. Actual Possession
3. Hostile
4. Continuous
5. Exclusive
6. For the period determined by the applicable state’s statute of limitations

Question 7

Adverse Possession: Open and Notorious requirement

What is required

Answer 7

• 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

Question 8

Adverse Possession: Actual Possession

What use is required and

What does it depend on

Answer 8

• 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

Question 9

Adverse Possession: Hostile Requirement

Good Faith v. Bad Faith

Answer 9

• 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

Question 10

Adverse Possession: Hostile Requirement

Permissive/unilateral acts by the owner do what?

Answer 10

2. 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…

Question 11

Adverse Possession

Hostile Requirement

What can be the result of a close relationship between the true owner and the adverse possessor

Answer 11

Close relationships: Some courts have implied permissive use, so cannot be adverse

Question 12

Adverse Possession

What does the Continuous Requirement require?

Significant interruption does what?

Answer 12

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

Question 13

Adverse Possession

Exclusive Requirement

Two parts

Answer 13

• 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

Question 14

Adverse Possession

For the Period Determined by the Statute of Limitations

What is Colorado’s SOL?

What happens to SOL when ejectment is filed?

Answer 14

Satute of Limitations is 18 years in Colorado

When an ejectment is filed, the SOL stops running

Question 15

Adverse Possession

What is Tacking?

What does it require?

Answer 15

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…

• 1. Title search to ensure the seller is the actual owner AND
• 2. Physically inspect premises for evidence of open and notorious use to eject any potential adverse possessors

Question 16

Adverse Possession:

What does it mean to be “In Privity”?

What will establish privity?

Answer 16

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!

Question 17

Adverse Possession

Disabilities and Tolling the SOL

What is the policy and what four disabilities are usually included?

Answer 17

• 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

Question 18

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.

1. When would the SOL be satisfied if AP started in 2000?
2. If AP started in 2006?

Answer 18

1. If AP started in 2000: 2007 (disability must be present at time when possession starts)
2. If AP started in 2006: 2015 (always the longer of the two periods)

Question 19

Adverse and Prescriptive Use:

Is it possible to get an affirmative easement for Open and Notorious use?

Answer 19

Yes, usually a shorter SOL than that for adverse possession

Question 20

What type of easement can be acquired through perscriptive use?

What will courts look for?

Answer 20

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

Question 21

Adverse Possession
Two part question here….

1. 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
2. Courts are very (Strict or Liberal?) when it comes to lessening the burden of the easement…

Answer 21

1. Strict
2. Liberal

Question 22

Adverse Possession

What does it mean if something is Under the Color of Title?

Do majority of states require this?

Answer 22

• 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)

Question 23

What is the purpose of adverse possession?

Two purposes.

Answer 23

• To promote security of title (protect justified expectations)
• To prevent claims going stale

Question 24

Adverse Possession

The SOL starts to run as soon as your property rights are violated.

1. What happens f a reversion in fee simple is concerned, when does the SOL start running?
2. What about for other types of possessory interests? Like timber, restrictive covenant on commercial use, affirmative easement etc?

Answer 24

1. If a reversion in fee simple is concerned, the SOL does not start running until the O gets his reversion
2. The specific possessory right has to be violated in order for the SOL to start running

Question 25

Adverse Possession and Affirmative Easements

Similarities and Differences

Answer 25

• Basically same elements except actual possession changes to actual use and most courts don’t require exclusivity

Question 26

Adverse Possession and Government Land

Who can/cannot adversely possess government land?

What land can government entities possess?

Answer 26

• Private citizens generally cannot adversely possess gov land
• BUT generally distinct government entities can adversely possess private land

Question 27

Adverse Possesion

Implied Dedication &

The Doctrine of Estopel

Answer 27

• Dedication is most commonly express, though many states have implied dedication doctrine, not all though
• Based on Doctrine of Estoppel: can’t sit back and let the government build a road over your land and then try and stop them or prevent others from using it!

OR we will estop you from allowing the public to cross your land for a long time and then suddenly saying they are not allowed

• Fictitiously based on intent…

Question 28

Will an owner’s unilateral acts stop the statute of limitations from running?

Answer 28

No, must have

1. Acknowledgement

or

2. Stop the Trespass
   (ex. go outside with a fuggin shotgun and say “get off my property scum bags” and they do so.

Question 29

Good neighbor rule in Adverse Possession

Answer 29

• When an owner allows general public on his land, general public cannot adversely possess or gain right-of-way easement on private land – owner can allow public to use private property without losing rights
• Example: public access to your private beach, neighborhood kids at school bus stop not going to get an actual prescriptive easement!
• BUT investment in a private road → implied dedication to the public (you should have spoken up before expense was made)

Question 30

How do you stop Adverse Possession?

What if traditional methods do not work?

Answer 30

• 1. You either file an ejectment (stops statute) or
• 2. You find a way to stop the AP, send someone there with a shot gun.
• 3. Give acknowledgement that its no longer adverse

If those don’t work, try the doctrine of agreed boundaries

Question 31

What is the Doctrine of Agreed Boundaries, what does it do, and what are the three requirements?

Answer 31

➢ It is a judge-made exception to the SOF
Boundary is redefined by express agreement between the parties
➢ Exists in some states (not all!)

Requirements (in a boundary dispute)

• *1. Prove boundary dispute**
• *2. Prove Agreement**: Express or implied agreement designating what is to be the boundary (from now on) [does NOT have to be in writing]
• *3. Acceptance:** prove ratification of/acquiescence to a new boundary for a period of time (usually equivalent to the time set in the state’s adverse possession SOL)