Adverse Possession

Question 1

What is HELUVA?

Answer 1

HELUVA is the six elements of adverse possession:

Hostile
Exclusive
Lasting (20 years, TX's are 3, 5, 10, and 25 years)
Uninterrupted
Visible
Actual

Question 2

HELUVA. What’s the H?

Answer 2

Hostile - being on the property with no right to be there (no permission!)

Question 3

HELUVA. What’s the E?

Answer 3

Exclusive - person must be excluding others from possessing property.

*If two co-tenants especially - you cannot adversely possess land just by using it when your co-tenant is gone for a long time.

Question 4

HELUVA. What’s U?

Answer 4

Uninterrupted - must be the kind of continuous use an ordinary owner would make

Question 5

HELUVA. What’s V?

Answer 5

Visible - out in the open, it isn’t a secret.

This doesn’t mean that the true owner not knowing that the trespasser isn’t there.

Question 6

HELUVA. What’s A?

Answer 6

Actual - must actually possess the land to get title.

Exceptions: constructive adverse possession + leasing of land not owned

Question 7

Does possessor need a mistaken good faith belief for adverse possession?

Answer 7

No. Possessor does not have to think that he owns the property. It just needs to be a claim of right.

Question 8

Can someone in TX adversely possess if they weren’t trying to possess what isn’t theirs?

Answer 8

No. In TX, trespasser needs to intend to appropriate the land as his own.

Question 9

X entered on property under a color of title to 100 acres, but actually possessed only 85 acres. The statutory period ran, and all the other requirements of adverse possession are satisfied.

What has X obtained?

Answer 9

X has obtained all 100 acres. X had “bad title” (claim of title was not good), but X obtains the 100 acres through constructive title.

Constructive title works here because X controlled 85 out of 100 acres (reasonable relation to the whole) and the property was unitary, aka a seamless whole.

Question 10

A conveyed the farm to B for life, remainder to C. Then D came on the unoccupied land and began a period of adverse possession. D satisfied all the elements of HELUVA.

What has D acquired by adverse possession?

Can D get the rest of the fee simple (C’s remainder)?

Answer 10

D has acquired B’s life state (“to B for life”). D can get C’s remainder, but he must adversely possess the land after B has died for whatever statutory period is needed for adverse possession.

Question 11

A conveyed his home to his daughter D, for so long as no liquor or tobacco is consumed on the premises. A stops by the home a few months, and sees that D has turned the home into Studio 54.

Has the clock started for adverse possession?

Answer 11

Yes, D has started the clock for adverse possession. D had a fee simple determinable (“for so long as”) and A had a possibility of reverter.

Question 12

A conveyed his home to his daughter D, “provided, however, if liquor or tobacco is consumed on the premises I reserve the right to reenter and retake the property.” A stops by the home a few months, and sees that D has turned the home into Studio 54.

Has the clock started for adverse possession?

Answer 12

D has a fee simple subject to condition subsequent (use of alcohol and drugs on property) and A has a right to re-enter. The clock does not start until A re-enters.

Question 13

For purposes of determining title by adverse possession, when is tacking not available?

A When one adverse claimant deeds the land to the other

B When one adverse claimant ousts the other

C When one adverse claimant devises the land to the other

D When one adverse claimant takes from the other by descent

Answer 13

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession.

Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.

Question 14

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she:

Answer 14

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes title free of the real covenant. The nature of the title obtained through adverse possession depends on the occupier’s activities on the land. If an adverse possessor uses the land in violation of a real covenant (i.e., a written promise to do or refrain from doing something on the land), she takes title free of the covenant EVEN IF she had knowledge of it. However, if she complies with the covenant for the statutory period, she takes title subject to the real covenant. In either case, if an adverse possessor uses land for the limitations period, she DOES take title to the land.

Question 15

Twenty-five years ago, a man purchased a vacant tract of land from a woman. Unbeknownst to the man, the woman did not own the land. Someone else owned the land in fee simple. Shortly after, the man built a house on the northwest quarter of the tract, leaving the rest of the tract vacant. Recently, the actual owner of the tract died, still without knowledge that the man had built a house on the northwest corner of the tract. The actual owner’s will left all of his property to his son. The relevant statutory period for adverse possession is 20 years.

If the man brings suit to quiet title to the tract he had purchased 25 years ago, how should the court decide?

Answer 15

The man would be declared the owner of the tract on the basis of constructive adverse possession. To establish title by adverse possession, the possessor must show (i) an actual entry giving exclusive possession that is (ii) open and notorious, (iii) adverse (hostile), and (iv) continuous throughout the statutory period. Here, the man actually possessed at least a quarter of the property because he built a house on it.

Actual possession of a portion of a unitary tract of land is sufficient adverse possession as to give title to the whole of the tract of land after the statutory period, as long as there is a reasonable proportion between the portion actually possessed and the whole of the unitary tract, and the possessor has color of title to the whole tract. Color of title is a document that purports to give title, but for reasons not apparent from its face does not. Usually, the proportion will be held reasonable if possession of the portion was sufficient to put the owner or community on notice of the fact of possession. Here, the man had color of title to the entire tract because he purportedly purchased it from the woman. His house took up a significant portion of the property, such that the owner or community would have been on notice of the man’s possession of the tract.

Question 16

A farmer conveyed a 60-acre parcel of land to a rancher. A private gravel road ran through the center of the parcel. The southern half consisted of arable land, which was used for farming. The northern half was undeveloped woodland.

Fifteen years after the farmer conveyed the parcel to the rancher, a landowner appeared, claiming ownership of the northern half of the parcel. Unbeknownst to either the farmer or the rancher, the landowner’s name had been forged on the deed purporting to convey the parcel to the farmer, and the landowner was, in fact, the true owner of the property at that time. The state in which the parcel is located has a 10-year statutory adverse possession period. The landowner admits that the rancher now has title to the southern half of the parcel by adverse possession.

In an action to quiet title, who will prevail as to the northern half of the parcel?

Answer 16

The landowner will prevail in an action to quiet title to the northern half of the parcel because the rancher did not actually occupy the northern half. An adverse possessor will gain title only to the land she actually occupies. Actual possession is the kind of use the true owner would make of the parcel and is designed to give the owner notice of the trespass and the extent of the adverse possessor’s claim. The gravel road divides the parcel into two distinct lots, and the rancher’s use of the northern half was not sufficient to put the landowner on notice of her trespass.

Regardless of whether the farmer acted in good faith, he did not have any title to convey to the rancher. As noted above, color of title is not usually necessary for adverse possession, which is the only theory under which the rancher could have title to the northern half.

Question 17

51 years ago, an owner conveyed land to a taker for “so long as the land is used solely for residential purposes; otherwise, the interest in land shall revert to the owner and his heirs.” The taker used the land as her personal residence for 20 years, but 31 years ago, she began operating a children’s day camp on the land. The owner knew of this operation, but he took no action.

2 years ago, the aged taker decided to get out of the camp business. She closed her business and once again began to use the land solely as her personal residence. Also 2 years ago, the owner died, survived by his son and only heir. Now the son is laying claim to the conveyed land. The jurisdiction in which the land is located has a 7-year adverse possession statute and another statute that bars enforcement of possibilities of reverter 55 years after their creation.

May the son validly claim title to the land?

Answer 17

No. Taker adversely possessed the land (used for prohibited event - not residential purposes) for 31 years. Her possession was also open, notorious, and continuous. The owner noticed and did nothing.

A possibility of reverter becomes possessory automatically upon termination of the prior determinable estate so the owner could have taken back the land.

Question 18

A landowner and her neighbor owned large adjoining properties. The boundary line between the properties was never clearly marked. Twenty-five years ago, the landowner dug a water well on a section of the property that she thought was hers, but in fact was the neighbor’s. The landowner has continued to use the water and to maintain the well on a regular basis ever since.

The neighbor was adjudicated mentally incompetent 15 years ago. He died recently, and his executor has filed suit to eject the landowner and quiet title. The jurisdiction’s statute of limitations for adverse possession is 20 years.

With respect to the land on which the water well was dug, which of the following is correct?

A - landowner has acquired title by adverse possession.

B - landowner cannot claim title as an adverse possessor because she did not enter with hostile intent.

C - landowner cannot acquire title because the neighbor was adjudicated incompetent.

Answer 18

The elements of adverse possession (HELUVA) are met. The possession has been continuous for 25 years, which is longer than the limitations period of 20 years. Thus, the landowner has satisfied all of the elements required to obtain title by adverse possession.

(C) is incorrect because the statute of limitations for adverse possession does not begin to run if the owner is under a disability to sue at the time his cause of action accrues (when the claimant begins the adverse possession). Here the neighbor was not adjudicated to be mentally incompetent until 10 years after the landowner began her possession of the well property. Thus, the landowner can acquire title because the statute of limitations began to run before the neighbor’s disability arose.