Property - 1/28 - Adverse Possession

AP and identity of the parties

1 - If owner holds a life estate, the successful adverse possessor receives only what the owner had - a life estate 2 - Adverse possession is not avl at all against an owner who doesn't hold the present right to possession of land

Adverse and hostile possession:

1 - Possession authorized by the owner doesn't meet this requirement. Some states believe that if the claimant believes in good farith that he owns the land, the element is met. In most states, the clamant's state of mind is irrelevant. 2 - courts in most states hold that hostility does not require that the claimant have any particular state of mind, but simply that the claimant has used the land without the permission of the true owner, and has used it in a way an ordinary owner would. 3 -There are a few courts that disagree, and define the hostility requirement by reference to the claimant's state of mind (i.e., by a "subjective" standard)

Ways to fight adverse possession

1 - start a lawsuit 2 - physical ejection 3 - grant the possessor permission

Fractured title and adverse possession

When title is fractured, the adverse possessor only gets the fractured possession (eg different if fee simple or life estate)

Actual possession:

the claimant must physically use the land in the same manner htat a reasonable owner would, given its character, location and nature.

Life estate

An estate whose duration is limited to the life of the party holding it, or some other person.

Fee simple

The greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. 2 - represents absolute ownership of land, and therefore the owner may do whatever he or she chooses with the land. 3 - If an owner dies intestate, the land will descend to the heirs.

For the statutory period:

the period for adverse possession rangers from 5 to 40 years. The most common periods are 10, 15, and 20 years.

Exclusive possession:

the possession cant be shared w/ the owner or w/ the public in general.

Continuous possession:

the possession must be as continous as a reasonable owner's would be, given the character, location and nature of the land.

Color of title and adverse possession

1 - But all courts recognize an exception for an adverse possessor who occupies in good faith "under color of title." 2 - One has "color of title" if she has a document declaring that she is the true owner - such as a deed or will - that, unfortunately, turns out to be defective and invalid. 3 - If one occupies land for the requisite period in the good faith belief that she is the true owner by virtue of such "color of title," she will acquire title to the whole parcel (assuming, of course, that the deed or will purports to grant title to the whole parcel) even though she actively occupied only a portion of the parcel. 4 - ordinary rule: an adverse possessor who occupies only a part of a parcel ordinarily acquires title only to the part occupied.

Elements of Adverse Possession

1 - In most jdxs, an occupant obtains title to land through adverse possession if her possession is: a - actual, b - exclusive, c - open and notorious, d - adverse and hostile, and e - continuous for the required period. 2 - Typically, the period for adverse possession is established by a statute, while the other elements stem from case law. 3 - How much possession is required varies according to the character, nature, and location of the particular land.

Fagerstrom v. Nome 2000 holding

1 - In order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence,... that for the statutory period 'his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.' 2 - The first three conditions--continuity, notoriety and exclusivity-- describe the physical requirements of the doctrine. The fourth condition, hostility, is often imprecisely described as the "intent" requirement. 3 - Whether a claimant's physical acts upon the land are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity. 4 - the quality and quantity of acts required for adverse possession depend on the character of the land in question. Thus, the conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it. 5 - Use consistent with ownership which gives visible evidence of the claimant's possession, such that the reasonably diligent owner "could see that a hostile flag was being flown over his property," is sufficient. Where physical visibility is established, community repute is also relevant evidence that the true owner was put on notice. 6 - Hostility is instead determined by application of an objective test which simply asks whether the possessor "acted toward the land as if he owned it," without the permission of one with legal authority to give possession.

Mannillo v. Gorski holding

1 - any entry without permission "which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession. 3 - In order to afford the true owner the opportunity to learn of the adverse claim and to protect his rights by legal action within the time specified by the statute, the adverse possession must be visible and notorious. 4 - Generally, where possession of the land is clear and unequivocal and to such an extent as to be immediately visible, the owner may be presumed to have knowledge of the adverse occupancy. 5 - we hereby hold that no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious. 6 - if the innocent trespasser of a small portion of land adjoining a boundary line cannot without great expense remove or eliminate the encroachment, or such removal or elimination is impractical or could be accomplished only with great hardship, the true owner may be forced to convey the land so occupied upon payment of the fair value thereof without regard to whether the true owner had notice of the encroachment at its inception. 7 - Of course, such a result should eventuate only under appropriate circumstances and where no serious damage would be done to the remaining land

AP and disability

1 - most commonly recognized disabilities are imprisonment, minority, and lack of mental capacity 2 - some jdxs suspend the running of the period until the disability is removed 3 - most states provide a lmited period of time after the disability ends w/in which suit must be brought 4 - in many state, only a disability that exists at the beginning of the adverse possession period will extend the statutory period 5 - death ends all disabilities; disabilities can't be tacked; and a disability doesn't shorten the std period for AP

Justifications for adverse possession:

1 - preventing frivolous claims. Seen as a special statute of limitations for recovering possession of land. It bars lawsuits based on stale, unrealiable evidence, thereby protecting the occupant from frivolous claims. It also provides the occupant w/ security of title, thus encouraging the productive use of land. 2 - Correcting title defects. technical mistakes often occur in the process of conveying title to land. Adverse possession resolves such problems by protecting the title of the person who actually occupies the land... lengthy possession serves as proof of title. 3 - Encouraging development. It reallocates title from the idle owner to the industrious squatter, thus promoting the productive use of land. 4 - Protecting personhood. Oliver Wendell Holmes: "a thing which you have enjoyed and used as your own for a long time... takes root in your being as cannot be torn away w/o your resenting the act..."

Open and notorious possession:

1 - the possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim. 2 - The function of the notoriety requirement is to afford the true owner an opportunity for notice. However, actual notice is not required; the true owner is charged with knowing what a reasonably diligent owner would have known