VII. Adverse Possession Flashcards
Adverse Possession generally
- Statutes of Limitations in EJECTMENT cut off the True Owner’s RIGHT to RECOVER POSSESSION of her LAND. Once this statute runs, the True Owner loses title to the property
- Issue is whether X being on True Owner’s land is merely a trespass or whether X has obtained title to the land by adverse possession.
Requirements for Adverse Possession
- HOSTILE: X on land w/ no right to be there
- EXCLUSIVE: X must be excluding others from possessing the property
- LASTING: posession must last for the statutory period.
- CL 20 years
- Facts of question
- GA: 20 years unless possessor has written evidence of title, in which case it is 7 years.
- UNINTERRUPED: kind of continuous use that an ordinary owner of the property would make
- VISIBLE: Use is out in the open & notorious
- ACTUAL: must actualy posses the land (with two exceptions)
What is not required for Adverse Possession
- True owner does not have to know what is going on
- AP does not have to think he owns it
- In GA, good fiath is required to establish title (meaning the AP must have thought that they have a good faith belief as to why they deserve possession)
Exceptions to Requirement of Actual Possession
-
Doctrine of Constructive Adverse Possession: expands the kernel of actual possession out to the full extent of the color of title under which the adverse possessor makes his claim of right to the property. (e.g. if you held 85 acres of 100 acre farm, you would get the whole b/c it represents color of title) Limitations:
- amount of land that is actually possessed must be a reasonable relation to the whole
- Property must be unitary, which means parcel of land must be one seamless whole
- Leased Land: Leasing land to a 3P constitutes possession for purposes of adverse possession
Adverse Possession against concurrent owners
- NO adverse possession against a co-tenant unless the co-tenant in possession excludes the other co-tenants from possession and the statutory period runs.
- exclusion starts the clock for purposes of adverse possesion
Life Tenant and Remainderman: Adverse Possession and Future INterests
- The adverse possession clock does NOT start to run against the holder of a future interest until that interest becomes possessory
FSD & Possibility of Reverter: Adverse Possession and Future INterests
n the case of a Fee Simple Determinable, the happening of the condition starts the clock running for purposes of adverse possession. Under the law of future interest, title went automatically back to the grantor (on the possibility of reverter) when the condition opperated
Fee Simple on Condition Subsequent & the Right of Reentry: Adverse Possession and Future INterests
- Close will not start to run until Grantor exercises his right of entry
Tacking
- An adverse possessor can tack together successive periods of adverse possession in order to satisfy the statutory period.
- Just as you can tack successive periods of adverse possession, you can tack successive periods of true ownership.
- All that matters is that there is NO GAP IN POSSESSION
Disabilities
If a true owner possesses any of hte disabilities, than the period of AP does not begin until true owner is free of disability
- Infancy (18?)
- Incarceration
- Insanity
At Common law: If the disability was not in existence on the day the adverse possession begins, it will not keep the clock from running.
In Georgia, the statute of limitations is tolled during the period that the True Owner is suffering under a disability, even if the disability was not in existence at the time the period of adverse possession began.
No tacking of disabilities (important in common law. Infancy but goes insane at 17–does not seamlessly combine–woudl in GA )
AP & Government Land
No adverse possession against government land
AP and Marketability
Not marketable. Must have a court action to quiet title
