Property Flashcards
The acts of possession of the man, his sister, and the buyer were sufficient to acquire title by adverse possession to the one-half acre actually possessed by them.
To acquire title by adverse possession, the possession must be (1) actual, (2) open and notorious, (3) exclusive, (4) continuous, and (5) hostile and under claim of right. Here, all of these requirements were satisfied as to the one-half acre on which the cabin was built and the garden planted. The facts state that the possession of the man, his sister, and the buyer was exclusive and continuous, satisfying these two requirements of the test.
Actual, open and notorious
To be actual, acts of possession must be consistent with how a reasonable owner of land would have used it if in possession. Id. at 64–66. Here, the acts of possession included building and occupying a cabin as well as planting, harvesting, and maintaining a garden. These acts are con-sistent with how a reasonable owner would have used the one-half acre.
To be open and notorious, the acts of possession must be such that they would have put an owner on notice of the adverse possession had the owner inspected the land. Here, the cabin and garden occupied a half-acre and were visible. When the owner acquired the land, it was vacant. Had the owner inspected, he would have determined that someone else was in possession.
hostile
Most courts and scholars agree that hostility and claim of right are present when a possessor is on the land without the owner’s permission. Some courts do hold that to acquire title by adverse possession, the possessor must have a good-faith belief that she has a good title to the land; others hold that the possessor must believe that she does not have a good title to the land. Thus, in the vast majority of jurisdictions (also including Missouri, Alabama, Montana, and Minnesota), the fact that the man, his sister, and the buyer were on the tract of land without the permission of the owner would suffice to satisfy the hostility and claim of right requirement.
Thus, the man, his sister, and the buyer satisfied the requirements for acquiring title by adverse possession as to the one-half-acre portion of the three-acre tract that they actually possessed.
Although neither the man, nor his sister, nor the buyer individually possessed the property for the statutory 10-year period, their periods of possession can be aggregated because they were all in privity with one another. Thus, the 10-year statute has run, and the buyer has acquired title to the one-half acre.
The period during which possession must endure to create title by adverse possession is deter-mined by statute. Here, the local statute provides that “any action to recover the possession of real property must be brought within 10 years after the cause of action accrues.”
A cause of action to recover possession of real property “accrues” when a wrongful act of pos-session occurs. See RDG Partnership v. Long, 350 S.W.3d 262, 270 (Tex. App. 2011). Here, the initial cause of action thus accrued when the man wrongfully entered a portion of the three-acre tract 15 years ago.
Application
Here, the man possessed the property for seven years, the man’s sister possessed it for one year, and the buyer possessed it for seven years. Although none of these individual periods of pos-session equals the 10-year statutory period, when multiple adverse possessors are in “privity” with one another, the period of their respective possessions can be aggregated for the purpose of determining whether the statutory period (here, 10 years) has run against the holder of the cause of action. In this context, privity denotes a relationship between possessors arising because of a voluntary transfer between them, descent under the laws of intestacy, or testamentary succes-sion as the result of a bequest.
Thus, because the 10-year statutory period has elapsed, the buyer has acquired title by adverse possession to the one-half-acre portion of the three-acre tract that he, the sister, and the man actu-ally possessed.
The buyer did not acquire title to the unpossessed two and one-half acres because he did not pos-sess or use that portion of the tract.
The buyer acquired title by adverse possession only to the portion of the tract for which he met all requirements of the five-prong test. (See Point One(a).) Because the man, his sister, and the buyer never possessed (or even used) any of the two and one-half acres beyond the garden, the buyer cannot claim title by adverse possession to those acres.
The doctrine of constructive adverse possession does not alter this result. Under this doctrine, if a possessor enters under color of title (i.e., an instrument creating the possibility of a title in the grantee who enters under the instrument) and the possessor takes possession of only a portion of the land described in the instrument, the possessor’s possession is deemed to constructively extend to the portion of the described land. Here, neither the man nor his sister entered under color of title. Although the buyer did enter with a deed and, arguably, color of title, his construc-tive possession endured only seven years, short of the statutory period in which the legal title holder may regain possession.
The buyer is entitled to damages from the sister because the sister did not convey title to the three-acre tract by a general warranty deed.
A warranty deed includes numerous covenants. Two of them—the covenant of seisin and the right to convey—are essentially the same, and they guarantee that the seller owns the conveyed land. Here, the sister did not own the three-acre tract when she purported to convey it to the buyer by a general warranty deed. Thus, she was in breach of the covenant of seisin and the right to convey, and the buyer is entitled to damages for that breach.
The buyer cannot compel the company to remove the sewer line from under the garden because he took subject to the sewer-line easement and probably did not interfere with that easement.
Where an adverse possessor acquires title by adverse possession, the nature of the acquired title is no greater than the title of the holder of the cause of action who was barred by the running of the statute of limitations. Here, the owner’s title was subject to the properly recorded sewer-line easement at the time the man wrongfully entered the land.
The man, his sister, and the buyer cannot claim to have adversely possessed the easement unless their possession interfered with the rights of the sewer company, giving it a cause of action against the man, the sister, and the buyer while they were in possession. There is nothing in the facts, however, suggesting that planting and maintaining a garden interfered with the sewer com-pany’s access to the sewer line. In the absence of such interference, the company has no cause of action against the possessors, in which case the buyer acquired the owner’s title only—a title subject to the sewer-line easement.
