(16) Adverse Possession

What is adverse possession?

A doctrine that bars the true owner from recovering possession and vests perfect title in the adverse possessor as though acquired by deed or will.

What is the purpose of adverse possession?

To transfer title to an adverse possessor when the true owner fails to timely eject the possessor after the statutory period has run.

What must an adverse possessor prove to acquire title?

Hostile, Open and Notorious, Actual, and Continuous possession (HOAC) for the statutory period.

What mnemonic helps remember the elements of adverse possession?

HOAC (Hostile, Open and Notorious, Actual, Continuous).

What does "hostile" mean for purposes of adverse possession?

The possessor intends to claim the land as his own without the true owner's permission.

Is hostility defeated merely because the adverse possessor mistakenly believes he owns the land?

No. It is immaterial that the adverse possessor believes the possession is lawful.

Does possession with the true owner's permission satisfy the hostility requirement?

No.

How does a co-tenant satisfy the hostility requirement for adverse possession against another co-tenant?

By giving actual notice of the hostile claim or by committing an ouster that clearly notifies the other co-tenant.

What is an ouster in the context of adverse possession between co-tenants?

Conduct that materially excludes or clearly notifies the other co-tenant that exclusive ownership is being claimed.

What does "open and notorious" mean?

The possession is sufficiently visible and obvious to place the true owner on notice that someone is claiming the property.

Why is the open and notorious requirement important?

It gives the true owner an opportunity to protect his ownership rights.

What does "actual possession" require?

The adverse possessor must use the property in a manner consistent with the nature and character of the land.

How is actual possession measured?

By how the true owner would ordinarily use similar property.

Example: How much use may satisfy actual possession of a summer home?

Use during the months when a summer home would ordinarily be occupied.

Must an adverse possessor have exclusive possession?

Yes.

What does exclusive possession mean?

The adverse possessor possesses the property as an owner would and not jointly with the true owner or the public.

What is possession by proxy?

Possession by a tenant or another person claiming under the adverse possessor.

Can possession by a tenant satisfy the actual possession requirement?

Yes, because possession by the tenant is attributed to the adverse possessor.

What does "continuous possession" require?

The adverse possessor must possess the property continuously throughout the statutory period.

Is continuous possession determined by constant physical presence?

No. It depends on the nature and ordinary use of the property.

What was the common-law statutory period for adverse possession?

Twenty years.

What is tacking?

Adding a predecessor's period of adverse possession to the current possessor's period to satisfy the statutory period.

When is tacking permitted?

When there is privity between successive adverse possessors.

What is required for privity sufficient to permit tacking?

A voluntary transfer of possession between the successive adverse possessors.

Is tacking allowed when one adverse possessor ousts another?

No.

Is tacking allowed when a prior adverse possessor abandons the property?

No.

May adverse possession periods be tacked through inheritance?

Yes, even without a written agreement.

What is color of title?

Possession under a written instrument that appears to convey title but is actually defective.

What is required for color of title?

A written instrument that purports to convey ownership but is legally defective.

How does color of title affect the hostility requirement?

A good-faith belief in the defective deed generally satisfies the hostility requirement.

How much land may an adverse possessor acquire under color of title?

The entire property described in the defective written instrument.

How much land may an adverse possessor acquire without color of title?

Only the portion of the land actually occupied.

What is a legal disability in adverse possession?

A condition that tolls the statute of limitations if it exists when adverse possession begins.

What is the effect of a legal disability?

It extends (tolls) the statute of limitations.

Which disabilities toll the statute of limitations according to Fleming?

Infancy, insanity, and imprisonment.

When must the disability exist to toll the statute of limitations?

At the time the adverse possessor first enters the property.

Can disabilities be tacked together to extend the statute of limitations?

No.

Do disabilities arising after adverse possession begins toll the statute of limitations?

No.

Against which estate does adverse possession run?

The estate that exists when the adverse possession begins.

Can an adverse possessor acquire a future interest that already existed when possession began?

No.

When can adverse possession run against a future interest?

Only if the future interest is created after the adverse possession begins.

Testable Issue: What are the elements of adverse possession?

Hostile, Open and Notorious, Actual, and Continuous possession for the statutory period.

Testable Issue: Does a mistaken belief of ownership defeat hostility?

No.

Testable Issue: When is tacking permitted?

When there is privity between successive adverse possessors.

Testable Issue: What is the difference between adverse possession with and without color of title?

With color of title, the claimant acquires the entire parcel described in the defective instrument; without color of title, only the land actually occupied is acquired.

Testable Issue: Which disabilities toll the statute of limitations?

Infancy, insanity, and imprisonment existing when adverse possession begins.

Testable Issue: Can adverse possession run against an existing future interest?

No, unless the future interest is created after the adverse possession has already begun.

Essay Rule: How should you analyze an adverse possession claim?

Determine whether the claimant satisfied each HOAC element for the statutory period, consider whether tacking or color of title applies, analyze whether any disability tolled the statute of limitations, and identify which estate is subject to the adverse possession claim.

Master Synthesis: What is the framework for adverse possession?

An adverse possessor acquires title by proving hostile, open and notorious, actual, exclusive, and continuous possession for the statutory period. The analysis then considers tacking, color of title, disabilities, and the particular estate against which the adverse possession runs.