Adverse Possession

Elements of Adverse Possession

1. Actual entry/Actual Possession and Exclusive possession that is

2. Open and notorious and

3. adverse and under a claim of right

4. continuous for the statute of limitations period and

5. Payment of property taxes in most states

Actual entry/Actual Possession is the

physical act of entering the property and actually possessing it in the way a true owner would

Exclusive Possession means

The AP is possessing the property exclusively, and it is not being shared with the true owner

Open and notorious

The possession is very visible. The AP is not trying to hide it and it is obvious enough that they are putting the true owner on notice

What does on notice mean?

The AP has made the true owner aware they are trying to take the property 

General Test

Would a reasonably attentive owner have noticed? 

Lutz Test is more specific

Substantial Enclosure, Usual Cultivation, and Improvement

Substantial Enclosure

Is it fenced? Or guarded?

Usual Cultivation

Are you growing something on it? (They expect to be around and enjoy what they have done)

Improvement

Did you put an improvement on the property?

Adverse (w/o owner's consent) and under a claim of right

Taken without their permission, and they intend to end up with the title

Color of Title

(a forged deed) You thought you owned it, but you do not 

Continuous for the Statute of Limitations period for ejectment, at least in a manner appropriate to the circumstances

Must use it 24/7 as the true owner would unless it is a special property which is determined by how the true owner would have used it or how the neighbors use it

Payment of property taxes in most states (today)

In addition to everything else, they also have to pay property taxes (which most adverse possessors do not)

Objective View

You would ask a third party if they thought a person was trying to claim title?

Good Faith

You actually thought you owned it and don’t

Bad Faith/Aggressive Trespasser

You know you don't own it, but still continue to use it as if you do

Difficult Aspects of Adverse Possession

1. Identifying successors-in-interest to the true owner 

2. Tacking of adverse possessors' period of possession 

3. Considering only the disabilities of the true owner

4. Remember to focus on the legal interest of the true owner at the time of the adverse possessor's entry

Difficult Aspects - Identifying successors-in-interest to the true owner 

Difficult Aspects - Tacking of adverse possessors

The second person gets it, and both people must be in privity with each other. The transfer must be voluntary, and there must be a relationship between the two people

Difficult Aspects - Considering only the disabilities of the true owner 

Must ask if The moment the adverse possessor enters the property the first time, was the true owner disabled?

Difficult Aspects - legal interest of the true owner at the time of AP’s entry

The person who is on the property can only get what the owner has; you can't convey more than you own, so therefore the possessor can't get more than that

A true owner's minority disappears when

he or she reaches the age of majority for the jurisdiction

A true owner's insanity disappears at

at his or her death if not before

If the owner and Ap are related to each other

The assumption is they are allowed to be there.

If the adverse possessor is related to the true owner

Then the rebuttable presumption arises that the possession is permissive, not adverse

Tacking means

The appearance of possession can be added together as long as they were in privity with each other (not strangers)

Successors-in-interest to the True Owner

The successor in interest to the true owner takes the property burdened by the true owner's sins and benefited by the true owner's advantages

What question would you ask

If the true owner was disabled at the moment the adverse possessor entered the property, then

the it cant be adversely possessed

To recover title it must be brought within how many years?

10 years after the cause there of accrued

Typical SOL for ejectment

1. Is within the age of minority,

2. of unsound mind,

3. or imprisoned,

4. such person, after the expiration of ten years from the time the cause of action occurs, may bring such action within five years after such disability is removed 

Must be aware and conscious to ensure no one is adversely possessing your land

Elements of a Prescriptive Easement

1. Use (not possession) - and use need not be exclusive

2. Open and Notorious - A reasonably attentive owner would have noticed the adverse possessor’s use 

3. Adverse or hostile - without permission of the true owner 

4. Under a claim of right - the adverse possessor was claiming a right to use the easement 

5. Continuous for the Statue of limitations for ejectment

Perspective Easement

An easement through adverse possession is not a title but the right to use it, and you do not need to use it continuously

The clock on adverse possesion does not begin until

The minority turns 18

You find out an item is stolen or

when you should have known, and the SOL kicks in