Adverse Possession Flashcards
What are the elements?
(1) Actual Possession
(2) Open and Notorious
(3) Exclusive
(4) Continuous
(5) Adverse/Hostile
(6) Certain jurisdictions require color of title, paid property taxes, or good faith.
(7) Statutory requirement of SoL
Actual Possession (Element of AP/Gobble proof)
Definition: To use as an owner would, physically occupy the property in some manner.
Gobble: Built a fence on his property and used the property for significant activities such as hunting/farming
Open and Notorious (Element of AP/Gobble proof)
Definition: Sufficiently visible to put a reasonable owner on notice
Gobble proof: Building up a fence. Adverse possessor also had a reputation around the neighborhood as the owner. Also could be setting up signs pointing to where the driveway to get into the property is.
Exclusive (Element of AP/Gobble proof)
Definition: Not shared with the true owner or any other adverse possessor; exclusive control of dominion
Gobble proof: Gobble testified he was in sole possession
Continuous (Element of AP/Gobble proof)
Definition: Done in a continuous way that is customarily pursued by owners of that type of property
Gobble proof: Previous owners passed down to them, they were able to tack on.
CONTINUOUS DOES NOT MEAN INTERRUPTED. Seasonal use (Nome 2000)
Adverse/Hostile (Element of AP/Tests)
Definition: Adverse is use as an owner would and hostile is without permission of the owner.
Tests:
(1) Objective Test (Majority): State of mind is irrelevant l whats important are the acts of the possessor and if he lacked permission from the true owner
(2) Claim of Right Test: AP alleges claim of right, meaning it was the possessors intention and use the land to his own exclusion.
(3) Intentional Disposition: AP must INTEND to know they are possessing. Must intend to OUST owner.
(4) Good Faith: Only innocent possessors can adversely possess. Can be no intent.
Amy occupies Greenacre in the belief that it is Brownacre, which she has purchased from Jade. The SoL is 10 years:
Is Amy’s possession hostile for purposes of adverse possession?
Yes. Even though she is acting on a good faith/mistaken belief. She believes it’s her land and intends to claim it as her own. If she stays in possession long enough, she wins under the objective test.
Amy occupies Greenacre in the belief that it is Brownacre, which she has purchased from Jade. The SoL is 10 years:
If Amy occupies Greenacre for three years and then “sells it” to Charlie, who occupies it for seven years, is the owner barred from ejecting Charlie?
Yes. Charlie has tacked on from Amy’s adverse possession if he is in privity of estate with Amy. Even though Amy had no color of title to Greenacre, a voluntary transfer of possession of Greenacre by Amy to Charlie puts in privity of estate with Amy.
Color of Title (Definition)
Someone acquires CoT when a written conveyance appears to pass title but does not do because:
(1) Faulty/defective mode of conveyance (Romero)
(2) Person didn’t own land they conveyed
Without Mary Achee’s permission, Juan During occupies lake cabin owned by Mary each summer for 21 years; the cabin is unoccupied during the remainder of the year. The statutory period for AP is 20 years:
(a) Does Juan have title to the cabin?
(b) What about if Mary used twice a year?
(a) Yes. He passes the statutory requirement and continuous does not mean interrupted, it can be for seasonal use.
(b) No. This destroys the exclusive element.
Helen occupies Whitecare openly, continuously, and hostilely to the true owner, Issac, for 10 years. Therefafter she conveys the property to Jane, who occupies Whiteacre under the deed for eight years. Jane leaves the property to move to Mexico and Karl - learning of Jane’s intentions from Jane’s friend Lulu - moves i on the day of Jane’s departure and continues in open/continous/hostile for three years.
(a) If the statute is 20 years, does Karl have title?
(b) Different if Jane invited Karl?
(a) No, because there is no privity of estate between Jane and Karl. If she conveyed it to him, he would.
(b) Yes. Karl would adversely possess it because an oral, voluntary transfer is sufficient for privity of estate and tacking.
Portia owns a 40 acre tract of land and conveys to MacDuff. MacDuff occupies 15 of the 40 acres and continues AP until statutory period has passed?
Does he own it all?
Yes. Because he conveyed all of it. This is also assuming no one else has AP’d on the other acres.
