Adverse Possession - Jan. 17, 19 Flashcards
What are the elements of adverse possession? (Studicata)
(1) Actual
(2) Exclusive
(3) Open and notorious
(4) Adverse (or hostile) under a claim of right
(5) Continuous for the statutory period
What is the actual element of adverse possession? (Studicata) (GG)
Under the majority view, for possession to be actual, the claimant must physically use the land in the same manner that a reasonable owner would.
Depending on the nature and character of the land, this element may be satisfied by taking residence, cultivation, improvement, grazing, pasturing, hunting, fishing, timber harvesting, mining, or other economically-productive activities.
The actual possession requirement means that the claimant’s conduct or activities must be extensive enough to rise to the level of “possession.”
What is the exclusive element of adverse possession? (Studicata)
For possession to be exclusive, the claimant must NOT share possession of the land with the true owner or general public.
How can an owner interrupt a claimant’s exclusive possession? (Studicata)
In order to interrupt the claimant’s exclusive possession, the owner must retake possession of the property (e.g., physically occupying the land, changing the locks, etc.).
What is the open and notorious element of adverse possession? (Studicata)
For possession to be open and notorious, the claimant’s acts of possession must be so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim.
What is the majority view of adverse (or hostile) under a claim of right open and notorious element of adverse possession? (Studicata)
Under the majority view (objective test), for possession to be adverse, the claimant must use the land as a reasonable owner would WITHOUT permission from the true owner.
What is the minority view of adverse (or hostile) under a claim of right open and notorious element of adverse possession? (Studicata)
Under the minority good faith view, for possession to be adverse, the claimant must believe in good faith that he owns title to the land (i.e., the claimant must innocently, but mistakenly, think that he is the true owner of the land).
What is the “land piracy” approach to adverse possession? (Studicata)
A few decisions suggest that the adverse possessor must know that he does not actually own the land and subjectively intend to take title from the true owner. However, this test is applied very rarely by a small number of states in limited situations (usually boundary line disputes).
Does the adverse possession clock run against the owner of the property if the owner is a minor, is mentally incompetent, or is imprisoned? (Barros)
No because they are categorized as disabilities because a person falling into any of these categories would be disabled from asserting her legal rights in a timely fashion. (109)
When does the adverse possession clock begin in the case of a person categorized as disabled? (Barros)
After the disability is removed. (110)
If someone becomes disabled after an adverse possessor takes hold, what happens? (Barros)
The disability period is waived because the owner could have brought an action for ejectment before they became disabled. (110)
Does the statue of limitations clock run against future interest holders? (Barros)
No. (111)
If owner develops second disability after adverse possessor enters onto property, does that count? (Barros)
No. (112)
What does openness mean in adverse possession? (GG)
Openness is from the standpoint of the wrongful possessor. A possessor acts openly if there is no attempt to conceal or hide the activities. (59)
What does notorious mean in adverse possession? (GG)
Notoriety implies some level of community awareness or knowledge of the possessor’s actions. The physical acts must be of a nature that imparts notice to the local community and thus to the true owner, who is presumed to be an interested member of that community. (59)
