Second Possession

Question 1

What are the rights of the true owner against the adverse possessor?

Answer 1

The true owner has the right to dispossess the property, to regain it from the adverse possessor, either through physically taking it back or through a court action.

Question 2

What are the elements of adverse possession?

Answer 2

Actual entry giving exclusive possession that is open and notorious; adverse and under a claim of right; and continuous for the statutory period.

Question 3

What is actual entry giving exclusive possession?

Answer 3

Actual entry giving exclusive possession means that the adverse possessor actually entered the land and possessed without the owner present and without the owner’s permission.

Question 4

What is open and notorious?

Answer 4

Must give the trust owner the opportunity to be on notice of occupancy (visible, apparent, not hidden), regardless of whether the owner ever actually takes notice, and must exhibit possession of typical ownership (change of address form at the post office, throwing a party, inviting friends over for dinner)

Question 5

What is the rule of minor encroachments from Manillo?

Answer 5

No presumption of knowledge arises from a minor encroachment along a common boundary

Manillo v. Gorski: the “oops I thought it was mine, so I built a walkway and stoop, so can I have it now?” case

Question 6

What is adverse and under a claim of right?

Answer 6

Adverse means asverse to the interests of the true owner. Under a claim of right means asserting title, denying title to all others, and no intent is required except to use the property as if it is the adverse possessor’s own property.

Question 7

What is continuous for the statutory period?

Answer 7

Without interruption, consistent with customary property under like and similar circumstances; if the true owner reenters the land, the SOL restarts; the SOL begins when the cause of action accrues (when AP enters and being APing)

Question 8

How does relation back work with adverse possession?

Answer 8

Once the SOL runs and the AP is successful, it not only bars any action by the former owner, but it also vests a new title in the adverse possessor which relates back tot he date of the event that started the SOL running. The law operates as though the new owner has held title since that event.

Question 9

What are potential issues that could arise with relation back and adverse possession?

Answer 9

1. Property taxes have been paid by true owner for statutory period, so now adverse possessor could be liable for those taxes to the former owner
2. Out of pcket liability for premises liability/other liability. The insurance company could come after adverse possessor for claim if relation back is applied.

Question 10

What is tacking?

Answer 10

Tacking is the joining of consecutove periods of possession by different persons to treat the periods as one continuous period.

Question 11

What does an adverse possessor need to tack previous adverse possessions?

Answer 11

any of the three types of privity

Question 12

What is privity?

Answer 12

Privity is the connection or relationship between two parties, each having a legally recognized interest in the same subject matter.

Question 13

What are the three types of privity? (just the name)

Answer 13

1. Privity of contract
2. Privity of estate
3. Privity of possession

Question 14

What is privity of contract?

Answer 14

The relationship between the parties to a contract, allowing them to sue each other, but preventing a third party from doing so (purchase agreement)

Question 15

What is privity of estate?

Answer 15

A mutual or successive relationship to the same right in property, as between grantor/grantee (deed exchanged)

Question 16

What is privity of possession?

Answer 16

Privity between parties is successive possession of real property (permission)

Question 17

Does tacking and privity apply where the deed is faulty?

Answer 17

Yes, tacking and privity apply even where in good faith the occupants received in good faith a faulty description of the property on the deed

Howard v. Kunto: the house built on the neighbor’s land case

Question 18

What is color of title?

Answer 18

Color of title refers to a claim founded on a written instrument that is for some reason defective. Color of title is not a prerequisite for adverse possession in most states, but it is advantageous to the adverse possessor.

Question 19

How does color of title benefit an adverse possessor?

Answer 19

Typically, an adverse possessor only gains possession of the land that is actually occupied. However, if the adverse possessor has color of title and the deed conveys all of the land, the adverse possessor then owns all of the land after the elements of AP are satisfied.

Question 20

What are two situations where color of title could come into play?

Answer 20

1. Where bad guy says they own the land and then sells it to someone else with fake deed
2. Where AP 1 has to move so they convey a deed to AP 2

Question 21

What are the two narrow exceptions to color of title?

Answer 21

1. If the owner is physically preent on a portion of the property, that portion is not conveyed
2. Where two contiguous lots with two separate owners are sold on a faulty deed, but the AP is only physically present on one lot, then the unused lot does not transfer to AP

Question 22

What is the effect of a disability statute?

Answer 22

It extends the SOL based on the period of time determined in the statute. The SOL then begins at the termination of the disability.

Question 23

What are the three types of qualifying disabilities?

Answer 23

1. Under age of minority
2. Of unsound mind
3. Imprisoned/in jail

Question 24

When is a disability relevant?

Answer 24

A disability must be present at the time the adverse possession begins

Question 25

Whose disabilities matter?

Answer 25

Only the disabilities suffered by the true owner at the time of the adverse possessor’s entry count, never the disabilities of later acquirers (heirs)

Question 26

When do you use the regular SOL versus the disability SOL?

Answer 26

Two math problems are required. Whichever provides more time, the regular SOL or the disability SOL, use that one.

Question 27

Can someone adversely possess goverment land?

Answer 27

Adverse possession does not run against the government (local, state, or federal) because goverment lands are said to be for the benefit of all of the people, who should not lose it because of the negligence of a few government employees.

Question 28

What is the narrow exception to adversely possessing government land?

Answer 28

Where adverse possession of government land has been permitted, where the land is held only in a proprietary, as opposed to public, fashion

Question 29

What is the discovery rule?

Answer 29

For adverse possession of personal property, the SOL begins running when the plaintiff first knew or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor of chattel