Deeds and title disputes: adverse possession

Question 1

Adverse possesion requirements

Answer 1

Adverse possession requires that possession be:

(1) Actual;
(2) Continuous for the statutory period;
(3) Open and notorious;
(4) Hostile; and
(5) Exclusive.

Question 2

Continuous possession

Answer 2

Continuous possession consists of three phases:

(1) The entry phase that triggers the statute of limitations;
(2) The middle phase use of the property by the adverse possessor; and
(3) The end phase: when the statute of limitations runs, and the adverse possessor is the legal owner of the property by operation of law.

Question 3

Continuous possession: infrequent use

Answer 3

Seasonal or infrequent use may qualify as “continuous” if consistent with the use of the property—e.g., a vacation home.

Question 4

Continuous possession: ejectment

Answer 4

The owner of the property can interrupt adverse possession by ejecting the adverse possessor.

Question 5

Continuous possession: tacking

Answer 5

Tacking allows an adverse possessor to satisfy the continuity requirement by “tacking” her predecessor’s time on the property.

The current adverse possessor must be in privity with the prior adverse possessor—i.e., there must have been some sort of exchange by non-hostile means such as descent, devise, contract, or deed.

Question 6

Hostile possession

Answer 6

Possession must be adverse to the owner’s interest—i.e., a competing claim of title.

It is irrelevant whether the owner would granted permission if asked; what is relevant is that the possessor did not ask for permission.

Question 7

Hostile possession: possessor’s state of mind

Answer 7

The majority rule ignores an adverse possessor’s state of mind.

The minority approach inquires into it:

(1) “Good faith” adverse possession is by mistake;
(2) “Bad faith” adverse possession is by aggressive trespass—i.e., to defeat the owner’s title.

Question 8

Scope of possession

Answer 8

Adverse possession generally traces the legal boundaries of the property, including subsurface rights.

Easements can also be acquired by adverse possession.

Question 9

Scope of possession: constructive adverse possession

Answer 9

If an adverse possessor enters under color of title from an invalid instrument—e.g., under a fraudulent deed—her occupation of the property is pursuant to the description in the invalid instrument.