Adverse Possession

Question 1

Adverse possession definition

Answer 1

this provides that possession, for a statutorily prescribed period of time, can ripen into title if certain elements are met.

Question 2

Adverse possession elements

Answer 2

COAH

• Continuous
• Open and Notorious
• Actual, and
• Hostile

Question 3

Definition of continuous

Answer 3

Adverse possession is uninterrupted for the appropriate statutory period, which is anywhere from ten to thirty years, depending on the jurisdiction.

Question 4

VA statutory time period for adverse possession

Answer 4

15 years; 25 years for church property

Question 5

Definition of Open and Notorious

Answer 5

• The adverse possessor is engaging in the sort of possession that the usual owner would make under the circumstances.
• The adverse possessor’s occupation must be visible. It cannot be clandestine or covert.
• This is to afford the true owner notice and the opportunity to assert his paramount ownership.

Question 6

Definition of Actual

Answer 6

The adverse possessor must make an actual physical entry onto the premises, to start the appropriate statute of limitations.

That entry cannot be symbolic, fictitious, or hypothetical, e.g. sending the true owner a letter of intent to possess adversely.

Question 7

Definition of Hostile

Answer 7

The adverse possessor cannot have the true owner’s permission to be there. Permission always defeats adverse possession.

Thus, one of the best ways for an owner to ensure that an adverse claim will not accrue against him is for that owner to give the possessor permission to be there.

Question 8

VA law on hostile

Answer 8

If possession is by a family member (e.g. child against parent), Virginia presumes that the child is on the property by permission of the parent. Thus, there is no adverse possession.

Question 9

Effect of adverse possessor’s subjective state of mind

Answer 9

This is irrelevant.

It does not matter, for example, that the possessor actually thought that he was on his own land or knew that he was encroaching on another’s land.

Question 10

Definition of tacking

Answer 10

One adverse possessor may combine his statotury period time with the preceeding adverse possessor’s time, so long as there is privity between the possessors.

Question 11

When privity is satisfied

Answer 11

This is satisfied by any non-hostile nexus, such as a contract, deed, or will

Question 12

When privity is not satisfied

Answer 12

This is not satisfied when when the adverse possessor acquires possession by ousting his predecessor.

Question 13

Definition of disabilities

Answer 13

The statute of limitations will not run against a true owner who is afflicted by this at the inception of the adverse possession.

Question 14

Common types of disabilities

Answer 14

infancy, insanity and imprisonment

Question 15

When the SoL begins to run again in the case of a disability

Answer 15

When the disability is cured, if ever.

Question 16

Inception of the adverse possession

(Disabilities)

Answer 16

To benefit from disabilities protection, the true owner must be afflicted with the disability at the at this time.

Question 17

O owned Blackacre in 1990 when A entered adversely. In 2000, O went insane. In 2010, O recovered. Our jurisdiction has a twenty year statute of limitations. In 2010, who owns Blackacre?

Answer 17

A, because O wasn’t insane at the time A began to adversely possess.

Question 18

VA Disabilities exception

Answer 18

Infancy. The fact that one co-tenant is under 18 will not prevent the statute from running against the other co-tenant

Question 19

VA maximum tolling period for disabilities

Answer 19

No disability is allowed to extend the statutory period beyond 25 years after the adverse possession began.