Subsequent Possession: Adverse Possession

Question 1

What is the ad coelum doctrine?

Answer 1

The landowner owns at least as much of the space above or below the ground as he can occupy or use in connection with the land.

Question 2

What is the doctrine of agreed boundaries?

Answer 2

If there is uncertainty between neighbors on the true boundary line, an agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time.

Question 3

What is the doctrine of acquiescence?

Answer 3

Long acquiescence - for a time shorter than the statute of limitations - is evidence of an agreement between parties fixing the boundary line.

Acquiescence is less than a true agreement.

Question 4

When is the doctrine of estoppel used in property?

Answer 4

When one neighbor makes representations about (or engages in conduct that indicates) the location of a common boundary, and the other neighbor then changes their position in reliance on the representations or conduct. The first neighbor is then estopped to deny the validity of their statements or acts.

Question 5

What is Quiet Title?

Answer 5

The action necessary to obtain recordable title via adverse possession.

Question 6

What is color of title?

Answer 6

A deed, will, or other document, which appears to convey title, but which does not do so because it is defective in some way.

Ex: the grantor doesn’t own the land conveyed or is incompetent to convey it, or the deed is not properly executed

Question 7

What is the law for adverse possession under color of title?

Answer 7

Actual possession under color of title of only part of the land covered by the defective writing is constructive possession of all of the land that the writing describes.

Question 8

What is required for constructive possession in the case of actual adverse possession?

Answer 8

1. The tract must be unitary:
   * If undivided: the land must appear as a seamless whole
   * If divided into lots: the lots must be contiguous
2. Common ownership - the portion occupied by actual adverse possession and the portion claimed by constructive adverse possession must be held by the same true owner

Question 9

How can adverse possession be terminated before title vests?

Answer 9

1. Lawsuit for ejectment
2. Physical entry by the owner that is open, notorious, and hostile (will reset the statute of limitations)
3. Obtain AP’s acknowledgement that possession is permissive (notice by owner is not sufficient; AP must acknowledge ownership)
4. AP abandons the property

Question 10

What are the three policy reasons for adverse possession?

Answer 10

1. Avoiding stale claims - a statute of limitations on trespass claims
2. Correcting title errors - AP “quiets” the title after a period of time
3. Protecting personal attachments - a thing which you’ve enjoyed and used as your own for a long period of time cannot be taken from you

Question 11

When a new title is created by AP, when does the title recognize ownership?

Answer 11

The date on which the statute of limitations started running (when the AP first entered the land)

Question 12

What are the elements of adverse possession?

Answer 12

1. Actual entry
2. Exclusive possession
3. Open and notorious conduct
4. Hostile and adverse possession
5. Continuous and un-interrupted

Question 13

What is required for the “exclusive possession” element of AP?

Answer 13

The claimant’s possession and use cannot be shared with the true owner or the public in general.

Absolute exclusivity is NOT required.

Question 14

What is required for the “open and notorious” element of AP?

Answer 14

The AP’s entry and subsequent actions must put the reasonably attentive property owner on notice that someone is on their property.

The requirement is aimed at constructive notice, not actual notice.

Notoriety is measured to an objective standard.

Question 15

What is the “discovery rule” for open and notorious conduct in adverse possession?

Answer 15

The statute of limitations doesn’t start to run until the plaintiff knew, or should have known, of the defendant’s wrong-doing.

Question 16

What is required for the “hostile and adverse” element of AP?

Answer 16

The claimant’s possession cannot be with the true owner’s permission.

Question 17

What are the three views for the AP’s required state of mind for “hostile and adverse” possession?

Answer 17

1. The objective standard (most common)
2. The good faith standard
3. The aggressive trespass standard

Question 18

What is the “objective standard” for the AP’s required state of mind for “hostile and adverse” possession?

Answer 18

The AP’s state of mind is irrelevant - adversity is judged on conduct alone

Question 19

What is the “good faith standard” for the AP’s required state of mind for “hostile and adverse” possession?

Answer 19

Requires a good-faith claim.

“I thought I owned it”.

Question 20

What is the “aggressive tresspass standard” for the AP’s required state of mind for “hostile and adverse” possession?

Answer 20

Occupants must intend to take the property even if they knew it did not belong to them.

“I thought I didn’t own it, but intended to make it mine.”

Question 21

What is required for the “continuous and uninterrupted” element of AP?

Answer 21

Possession must be continuous within the statutory period, but does NOT need to be constant.

AP is allowed to come and go in the ordinary course, given the nature of the property in question.

Question 22

What is the doctrine of tacking?

Answer 22

Tacking permits successive APs to tack (combine) their periods of AP to meet the statute of limitations… provided that there is privity between each successive AP.

Question 23

What is privity between APs?

Answer 23

A substantive legal relationship between two or more parties that establishes a mutual interest in the same real property.

Ex: the legal transfer of property from one person to another