Real Property Flashcards
Principles of Adverse Possession
To acquire title by adverse possession, a possessor must wrongfully enter the land of another triggering a cause of action for possession by the true owner of the land. Once the cause of action accrues, the wrongdoer’s possession must be actual, open and notorious, continuous, exclusive, and hostile and under claim of right for the entire statutory period over which the true owner could have sued. If the true owner fails to sue by the end of the statutory period, the statute of limitations runs on that suit, with the consequence that the possessor acquires a title by adverse possession good against all the world including the true owner who failed to timely sue.
Tacking
For the purpose of determining whether the adverse-possession statutory period has run when successive owners of property are in privity with one another, the time period for bringing an action against a wrongdoer in possession is determined by adding together the time each owner had to bring the action. Sheldon F. Kurtz, Thomas P. Gallanis & Herbert Hovenkamp, The Law of Property, An Introductory Survey § 4.6 at 73 (7th ed. 2018). This principle is called tacking. Among other things, privity exists when the second person inherited the land owned by the first person.
Disability
Here the governing statute provides that if, at the time the cause of action for possession accrues, the holder of the cause of action is a minor, the time to bring the cause of action against the possessor is extended by such period as the statute provides. This concept is known as “tolling.” (While not relevant here, many states also allow tolling if the holder of the cause of action is mentally incompetent or imprisoned.) In common with the law of other states, here tolling applies only if the person who had the cause of action when the adverse possessor first entered the land at issue was a minor at that time. Tolling does not apply if, after the possessor wrongfully enters the land, a person who is a minor succeeds to the cause of action, as occurred here in 2016. Thus, the fact that Mary was a minor when she acquired the cause of action is irrelevant in determining whether the 10-year statute has run.
Continuity
To acquire title by adverse possession, the possessor must have been in continuous possession for the statutory period. Once the statutory period has run, the possessor acquires a fee simple title. That adverse possession title is not derived from the former owner(s) who were adversely possessed; it begins a new chain of title. Whitman et al., supra, at 748. Thus, Wendy’s wrongful possession ripened into a fee simple on January 1, 2020. The facts state that between January 1, 2010, and January 1, 2020, Wendy’s possession was continuous. For adverse possession purposes, that is the only period to which the continuity requirement applies. The fact that Wendy ceased to occupy the Central Acre after she acquired a fee simple title to it is therefore irrelevant.
Doctrine of constructive adverse possession
While ordinarily a possessor cannot acquire a title by adverse possession unless the possessor goes into actual possession of land, there is an important exception. It is known as the doctrine of “constructive adverse possession.” If a possessor enters under a “colorable” document but only takes possession of a portion of the entire area described in the document, the possessor may claim any additional portion of the entire area described in the document if (a) the area of the additional portion is reasonable in size, (b) the additional portion is adjacent to the portion of the area actually possessed, and (c) the portion possessed and the portion not possessed are owned by the same person.
