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Question 1

What is adverse possession?

Answer 1

Uninvited intruders that meet certain criteria can get legal title to land and divest the owner of the title holder’s rights

Question 2

Where does the title come from in adverse possession?

Answer 2

The statute of limitations for trespass

Question 3

What is the rationale behind adverse possession?

Answer 3

To punish landowners that are not diligent and to award possessors that are

Question 4

For adverse possession, what happens if the owner doesn’t within the statutory period take actions to eject the possession?

Answer 4

Title vests in the possessor and the true owner loses possession

Question 5

What is an adverse possessor?

Answer 5

Someone that occupies the real property of another either with or without the knowledge of the other’s rights in a way that gives the owner a cause of action for ejectment

Question 6

What are the major elements that must be proven for adverse possession?

Answer 6

1. PHYSICAL:
– actual
– open
– notorious
– exclusive

2. MENTAL:
   – hostile
3. TIME:
   – continuous possession for statutory period

Question 7

If you get title by adverse possession is it marketable?

Answer 7

Not unless the adverse possessor vindicates his rights in court. That removes the risk that title would be subject to a challenge by a prior legal title holder. If it hasn’t been adjudicated in court, the buyer is buying a lawsuit because the previous holder can contest all legal issues related to the adverse possession claim. The title gotten by the adverse possessor is a legal title, but it is not marketable until it is perfected

Question 8

What is involved in the element of adverse possession for “actual“?

Answer 8

There must be substantial occupation of the land that leaves physical evidence.

Ie: fencing, building, visible marks of use such as mowing the grass.

Test: did the adverse possessor use the land as a true owner usually would in the circumstances?

Question 9

What is involved in the “open and notorious“ element for adverse possession?

Answer 9

There must be visible evidence that the land is being possessed in order to put the rightful owner on reasonable notice of the possession. The occupation must apprise the world that the land is being occupied, and convey visible notice to the community of its exclusive use.

Question 10

Is it necessary for the element of “open and notorious“ for adverse possession that the owner actually discover the possession?

Answer 10

No, all that is necessary is that there be visible evidence that would have been discovered from a reasonable inspection. The landowner has to either know about the possession or should have known about it.

Question 11

What is the minority position on adverse possession regarding property taxes?

Answer 11

The adverse possessor must pay taxes on the property in order to claim adverse possession

Question 12

What is involved in the “exclusive“ element for adverse possession?

Answer 12

The possessor must have dominion and control over the land.

Possession cannot be shared with the owner, but there can be more than one co-adverse possessor, or the adverse possessor can have exclusive possession over one parcel or portion of the land and the owner over the rest.

Question 13

How does underground possession of land relate to adverse possession?

Answer 13

The owner’s title extends from the surface to the center, but actual possession is only on the surface. This means the owner must be able to see the adverse possession. Cavities underground do not allow the owner to see, so the SOL would start on the date that the trespass became known

Question 14

What is involved in the “hostile“ element for adverse possession?

Answer 14

The possession is without permission from the owner through either an express or inferred act. This means that the possessor acts in a manner that is inconsistent with the owner’s rights and claim the land as his own

Question 15

Does the adverse possessor‘s motive or state of mind matter for adverse possession?

Answer 15

No, all that matters is a physical relationship to the land. It is still considered to be hostile even if the adverse possessor falsely believes he has a good title

Question 16

If a possessor gets any type of permission from the owner, how does that relate to adverse possession?

Answer 16

It destroys the hostility element of adverse possession

Question 17

What is a likely indicator that some kind of permission was given to an adverse possessor enough that it would destroy adverse possession?

Answer 17

Any discussion between the occupier and the owner likely gives permission, although just knowing about the possession does not destroy hostility

Question 18

What is the length of the requirement for the element of “hostile” for adverse possession?

Answer 18

The duration of the applicable SOL

Question 19

If an adverse possessor got permission to be on the land in the final year of the SOL, what happens?

Answer 19

That destroys hostility

Question 20

If a relationship was originally that of landlord-tenant, and then becomes one of adverse possession, when does the SOL for adverse possession begin?

Answer 20

After the termination of the tenancy, which means after the last rent payment was made

Question 21

Are minimal non-structural encroachments such as fences, shrubs, or lawn-mowing across the boundary considered to be adverse enough for adverse possession?

Answer 21

No

Question 22

What are the two different ways that you can get hostility as an element of adverse possession?

Answer 22

– Claim of right

– colour of title

Question 23

How do you meet the hostility element for adverse possession through a claim of right?

Answer 23

The adverse possessor moves onto the land and claims it as his with an intent to make the land his or a belief he has a rightful claim

Question 24

How do you meet the hostility element for adverse possession through colour of title?

Answer 24

Through a deed or conveyance instrument that appears to convey title or appears to be facially valid, but it doesn’t actually. This means that the adverse possession believed his actions were lawful.

Question 25

What is an example of someone meeting the hostility element for adverse possession through colour of title?

Answer 25

A forged deed being given by a fake seller

Question 26

Some statutes will reduce the possessory period for adverse possession when what?

Answer 26

It was through colour of title. This could mean something like instead of 20 years, there only needs to be seven

Question 27

What are the current range of periods of adverse possession SOLs?

Answer 27

Between 5-30 years

California: five years and you must pay property taxes during the possession

Question 28

What is the difference between entering as an adverse possessor to land when you don’t have colour of title and entering when you do reguarding the amount of land you get?

Answer 28

– Color of title: this puts the adverse possessor in constructive possession of all the property described in the deed as long as the portion is reasonable in proportion to the property actually possessed. If he is farming 80 out of 100 acres, he gets all 100 through adverse possession. This means the adverse possessor can take possession of just a part of the land, but claim title to the entire parcel
– no color of title: the adverse possessor can only claim the land he actually possessed. If he farmed 80 out of 100 acres, he only gets 80

Question 29

What is involved in the element of “continuous possession for the statutory period“ for adverse possession?

Answer 29

The possession must continue without a significant interruption for the period of the limitation.

Question 30

Once the SOL expires for adverse possession, the possessor’s possession ripens into what?

Answer 30

Good title automatically by operation of law.

Question 31

Is it OK to have brief or ordinary absences and still claim adverse possession?

Answer 31

Yes such as leaving overnight, going to town, or going on vacation. That does not break the possession

Question 32

Is seasonal use of land enough to claim adverse possession?

Answer 32

Yes

Question 33

What are situations when the SOL would be tolled for adverse possession?

Answer 33

If the owner is someone that the SOL does not run against, such as the government, someone that is insane, an infant, a prisoner, someone in active military duty, someone out of the state, etc then the SOL doesn’t run

Question 34

In order for the SOL not to run against a possessor of land because of a tolling reason, the disability must have existed when?

Answer 34

At the time the adverse possessor entered the property

Question 35

At common law what is the SOL for adverse possession?

Answer 35

20 years.

There is no majority rule today, so if the essay does not say the length the adverse possession, use the common law 20 years

Question 36

What is required in order for there to be tacking for adverse possession?

Answer 36

There must be privity or some connection between the first adverse possessor and the later ones

Question 37

What does an adverse possessor acquire through adverse possession?

Answer 37

Whatever interest the rightful owner had

Question 38

If an adverse possessor gets possession of a life estate, and the owner of the life estate dies, what happens?

Answer 38

The land passes to the person that had a future interest, and the adverse possessor then has nothing

Question 39

If there has been estate bifurcation, such as the owner has sold oil rights and then moved away, and someone went into adverse possession, what has he acquired?

Answer 39

Just the land without the oil rights because that is all that the actual owner had

Question 40

What is the mnemonic to remember the elements for adverse possession?

Answer 40

ONE CHA 
- open
– notorious
– exclusive
– continuous
– hostile
– actual