BAR FLASHCARDS - P10 Titles
ADVERSE POSSESSION
The basic concept here is that possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title to real property.
Title by adverse possession results from the operation of the statute of limitations for ejectment.
If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor.
THE ELEMENTS OF ADVERSE POSSESSION
For the elements of adverse possession (meaning, what the possessor must show to establish title by adverse possession), remember C O A H. For possession to ripen into title, it must be:
• Continuous
• Open and notorious
• Actual and exclusive
• Hostile
Continuous
Uninterrupted, as owenr might use
An adverse claimant’s possession must be continuous throughout the statutory period. What does this mean?
Intermittent periods of occupancy are not sufficient. However, constant use by the claimant is not required as long as possession is of a type that the usual owner would make. Also, there need not be continuous possession by the same person; an adverse possessor can tack her own possession onto the periods of adverse possession of her predecessors (see below).
Open and Notorious Possession
Apparent to put owner on notice
When is possession open and notorious?
The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.
Actual and Exclusive
What does actual possession mean?
An adverse possessor will gain title only to land they actually occupy. In some cases, however, actual possession of the entire parcel claimed is not necessary. If an adverse possessor enters under color of title (meaning by invalid deed), she is deemed to be in constructive possession of all the land that the deed describes, as long as she is in actual possession of a reasonable portion of that land.
What does exclusive possession mean? Exclusive possession means that the possessor is not sharing with the true owner or the public. Two or more people acting together could succeed in obtaining title by adverse possession; they would take title as tenants in common.
Hostile
What does it mean for possession to be hostile? Permission defeats
The hostility requirement is satisfied if the possessor enters without the owner’s permission. Note that the adverse possessor’s state of mind is irrelevant. It doesn’t matter whether the possessor actually thought that they were on their own land or knew that they were encroaching on another’s land. When possession starts permissively (for example, by lease), possession does not become adverse until the possessor makes clear to the true owner the fact that they are claiming “hostilely.”
a. Co-Tenants—Ouster Required: Possession by one co-tenant is not adverse to the other co-tenants voluntarily out of possession because each co-tenant has the right to possession of all the property. A co-tenant must oust others or make an explicit declaration that they’re claiming exclusive dominion to create adverse possession.
b. Grantor Stays in Possession—Permission Presumed: Where a grantor stays in possession of land after their conveyance, they’re presumed to be there with permission of the grantee. (Likewise, if a tenant remains in possession after the expiration of the lease, they’re presumed to have permission of the landlord.)
c. Claim of Right: A possessor enters under claim of right when they reasonably believe that the property belongs to them—usually because they have an invalid deed. An invalid deed does not give the possessor permission to be on the land. When someone assumes possession with what they mistakenly believe is valid title, the possession is hostile and adverse. Most states use “claim of right” instead of or interchange- ably with “hostile.”
Running of Statute
The statute of limitations begins to run when the true owner can first bring suit. Filing a suit will not stop the period from running, however; the suit must be pursued to judgment.
Payment of Property Taxes Generally Not Required
Most states do not require the adverse possessor to pay taxes on the property, but consider such payment good evidence of a claim of right.
TACKING
One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity between the possessors.
Privity is satisfied by any non-hostile nexus, such as a contract, deed, or will.
By contrast, privity is absent when the possessor acquires possession by ousting his predecessor in possession.
OUSTER defeats privity, no tacking allowed.
DISABILITIES
The statute of limitations will not run against a true owner who is afflicted by a disability at the INCEPTION of the adverse possession (meaning, when the cause of action first accrued).
Only the disability of the owner existing at the time the cause of action arose is consid- ered. What are some common disabilities? Insanity, infancy, imprisonment.
ADVERSE POSSESSION AND FUTURE INTERESTS
The statute of limitations does not run against a holder of a future interest until the interest becomes possessory.
EFFECT OF COVENANTS IN TRUE OWNER’S DEED`
If an adverse possessor uses the land in violation of a restrictive covenant in the owner’s deed for the statute of limitations period, they take free of the restriction. If, however, the possessor’s use complies with such a covenant, they take title subject to the restric- tion.
LAND THAT CANNOT BE ADVERSELY POSSESSED
Title to government-owned land and land registered under a Torrens system (in place in a small minority of states, whereby title is estab- lished with a governmental authority that issues title certificates to owners) cannot be acquired by adverse possession.
