Adverse Possession & Prescriptive Easement Flashcards
What is Adverse Possession?
Adverse possession is the lawful transfer of title when four (or potentially five) elements have been met for a statutorily prescribed period of time.
What are the four elements that are always included in Adverse Possession claims?
C – Continuous
O – Open and Notorious
A – Actual
H – Hostile
What is the fifth element that may be considered?
State of mind may be considered in some jurisdictions (e.g., good faith or bad faith).
How long do you need to meet these elements to adversely possess a piece of property?
The answer is determined by the jurisdiction’s statutory provisions for length of time required to adversely possess.
What does it mean to continuously possess property for purposes of Adverse Possession?
The possession must be uninterrupted meaning that if a reasonable person would believe you had abandoned your possession, the clock restarts.
What does it mean to Openly and Notoriously possess property for purposes of Adverse Possession?
The possession must be of the sort that the usual owner would make under the circumstances (e.g., residing in a residential building or using an office space as an office). It must be visible and cannot be clandestine or covert.
What does it mean to Actually possess property for purposes of Adverse Possession?
The possessor must make actual entry onto the premises to start the clock. You cannot merely send the true owner a letter of intent to possess adversely; you must actually enter and begin to use the premises for their intended purpose.
What does it mean to Hostilely possess property for purposes of Adverse Possession?
The possessor must NOT have the true owner’s consent to be there. If the owner grants their consent for the possessor to be there, the adverse possession claim will almost certainly be negated.
In jurisdictions where the State of Mind element applies, what state of mind is required to Adversely Possess?
In some jurisdictions, it requires a Claim of Right state of mind (read: The possessor act as normal owner would act and thought they had the right).
In some jurisdictions, it requires a Good Faith state of mind (read: ignorance of the possessor’s trespass). This can be difficult to distinguish from a Claim of Right state of mind and can generally be considered just different language.
In other jurisdictions, it requires a Bad Faith state of mind (read: possessor must knowingly trespass to adversely possess).
What is the difference between Adverse Possession and Prescriptive Easements?
Adverse Possession transfers title of the entire property to the possessor, whereas Prescriptive Easement only creates an easement for the limited use that possessor has used the property for.
What is tacking?
Tacking is when the statutory time to adversely possess the property has not been completed, but possession of the property transfers to another possessor who is not the owner. Their time can be “tacked” together for purposes of the statutory requirements so long as there is privity.
What is privity?
Privity can be satisfied so long as the possession changes hands without hostility.
Can you tack if there is a gap in possession?
No, once the possession ceases to be continuous, the clock resets.
What is color of title?
Color of title exists when there is a flaw in the deed and when this happens, a possessor can adversely possess the property despite only using a part of it (read: a color of title action can grant adverse possession when ordinarily it would only grant a prescriptive easement).
Can you toll the statute of limitations for adverse possession?
Yes, you can toll the statute of limitations for adverse possession (read: stop the clock) for the following:
Minority: if the owner is a minor, the statute of limitations can be tolled until they reach the age of majority.
Disability: If the owner is disabled, the statute of limitations can be tolled for a period of time.
