Property--Adverse Possession

Common law elements

1) Actual 2) Open and Notorious 3) Continuous 4) Adverse or Hostile 5) Exclusive

In 2000, Adverse Possessor entered property owned by True Owner. At the time, True Owner was age 40, mentally competent, and not in prison. In 2005, however, True Owner became mentally incompetent as a result of brain injuries suffered in a car accident. Assume the statute of limitations is 10 years. If True Owner's guardian brings an actions to eject Adverse Possessor this year, the ocurt is most likely to rule in favor of:

Adverse Possessor in most jurisdictions, because True Owner was not under a disability in 2000, when Adverse Possessor entered the property and more than 10 years have elapsed since then.

In 2000, Adverse Possessor entered property owned by True Owner. At the time, True Owner was only age 15 and the age of majority in this jurisdiction is 18. In 2001, when True Owner was age 16, he committed a crime and was sentenced to Juvenile detention. True Owner was released from Juvenile detention eight years ago. If the jurisdiction has a 10-year statute of limitations, and if True Owner sues Adverse Possessor in 2014, a court is likely to rule in favor of:

Adverse Possessor, because in most the only relevant disability is one that existed when the adverse possession began; therefore, the statute of limitations began running in 2003 when True Owner turned age 18.

Continuous (Uninterrupted) Possession

The adverse possessor must be in possession for the entire period of the statute of limitations; her possession cannot be interrupted by the true owner, a third party, or by her own abandonment of the property.

Boundary by Argreement

Typically, this doctrine requires first a dispute or disagreement about the boundary, then an agreement by both owners as to what the boundary is, and finally mutual recognition, and action, recognizing and abiding by the agreement

Color of Title

a legal instrument (a deed, a will, a trust, etc.) that on its face purports to give good title, but in fact does not, because it is invalid in some way not obvious on its face If a claimant has color of title, and the claimant successfully adversely possesses a portion of the tract described in the instrument conveying color of title, then the claimant will be deemed to have successfully adversely possessed the entire tract. One important aspect of color of title is that its holder must act in good faith.

Which of the following is an example of color of title?

All of the above (a deed acquired at a tax sale that is invalid because the tax sale was not properly conducted under state law; a will that was signed by True Owner; who lacked the capacity to make a will; a deed signed by Son, who mistakenly believed that he had inherited the property when his parents died.

Tolling for Disabilities

Common disabilities include minority, incapacity, imprisonment, and serving in the military during wartime.First, in most states, for a disability to protect the true owner, the disability must exist when the adverse possession begins. In those states, the disability would be ignored if it arose any time after the adverse possession began. These states also prohibit tacking of disabilities. (Minority do) The second difference between states concerns the length of time that a true owner has to act after a disability ends.Other states will give the true owner a shorter period of time to bring suit after the disability ends.(Ark. 3 years)

Exclusive Possession

The adverse possessor must be the only person exercising dominion and control over the property as an owner would.

Adverse Possessor entered property owned by True Owner. Eight years later, Adverse Possessor sold his interest in the property to Buyer. Buyer has been in possession of the land for only five years since the purchase from Adverse Possessor. In a jurisdiction with a 10-year statute of limitations, can Buyer claim title by adverse possession?

Yes, because privity of estate exists between Adverse Possessor and Buyer, so Buyer can add together both his time and Adverse Possessor's time to satisfy the statute of limitations.

Adverse Possession

adverse possession results from the operation of a state's statute of limitations for actions regarding real property.

18-11-103. Payment of taxes on wild and unimproved land -- Presumption of color of title.

payment of taxes on wild and unimproved land in this state by any person or his predecessor in title for a period of fifteen (15) consecutive years shall create a presumption of law that the person, or his predecessor in title, held color of title to the land prior to the first payment of taxes made as stated and that all the payments were made under color of title.

True Owner owned a cabin in a secluded location that is not visible from any road. Thirty years ago, a sportsman named Hunter discovered the cabin and has used it, without True Owner's knowledge or permission, every fall during hunting season. True Owner generally visits the property in the summer months, staying for several weeks at a time, but is always gone be the middle of August. True Owner has had neighbors periodically check on the property, but none had ever seen Hunter using the cabin. Which of the following explains why a court is likely to reject Hunter's adverse possession claim?

All of the above are true (open and notorious, not continuous of uninterrupted, no exclusive) and would negate Hunter's claim for adverse possession.

Boundary by Acquiescence

Another solution to uncertainty about boundaries occurs when there is a "monument" in place—either natural (a stream, a line of trees) or artificial (a fence) and instead of reaching any type of express agreement, neighbors simply act as though the monument is the boundary, for a long time

Tacking

If property passes consensually (by sale, inheritance, will, gift, etc.) from one adverse possessor to another, the statute of limitations will not be tolled (paused), but will continue to run. Tacking applies on the true owner's side as well.

Privity of estate

If property passes consensually (by sale, inheritance, will, gift, etc.) from one to another

Which of the following is the most common benefit to an adverse possessor who enters property with color of title?

If the adverse possessor has actual possession of part of the property, he/she will also be able to claim constructive possession of the entire property described in the color of title instrument

Statutes of limitations (Expired)

If the true owner has not filed suit within this time period, the true owner is barred from successfully suing to recover the property. As a result, we say that the adverse possessor has acquired title by adverse possession.

Open and Notorious Possession

Open means that the acts of possession are visible, apparent, or unconcealed. Notorious means that those acts were of a nature that would lead a reasonable person to assume that the adverse possessor was the true owner. To meet the "open and notorious" requirement it is not necessary that the true owner have actual knowledge of the adverse possession--must be open enough for a diligent owner.

True Owner inherited Black acre from his parents in 1975. In 1980, at age 25, True Owner left the area to attend college in another state. He ultimately got a job in the college town and has not returned to Blackacre since then. In 1982, Rancher began grazing cattle on Blackacre throughout the year. He visited the property regularly to tend the cattle and to repair fences and gates as needed. Whenever he was in the area, Rancher had coffee at a diner that was located across the street and became good friends with many of the other ranchers who frequented the diner. No one ever asked if Rancher had purchased the property, but all assumed that he owned it. If True Owner files a lawsuit to eject Rancher from the property, a court is most likely to rule in favor of:

Rancher, because Rancher's possession was open and notorious despite the fact that True Owner never became aware of Rancher's presence on the property.

Government-Owned Lands

The common law and the law today in virtually all states does not allow successful adverse possession against the government. One policy underlying this rule is that government land is considered to be held "in trust" for the public. Another is no doubt the administrative cost of policing against adverse possession over large tracts of land.

Adverse or Hostile Possession

The majority view, which is also the modern trend, is an objective test--The adverse possessor's subjective intent is irrelevant. Minority View--1) "Good Faith belief that he owns title to the real property" 2) bad faith" or "intent to claim" test, the claimant must know that the land is not his and must intend to take title away from the true owner (Maine doctrine)

18-11-102. Payment of taxes on unimproved or unenclosed land deemed possession.

Unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he has color of title thereto, but no person shall be entitled to invoke the benefit of this section unless he, and those under whom he claims, shall have paid the taxes for at least seven (7) years in succession.

Arthur took up residence on property that was owned by True Owner. Five years later, True Owner died and True Owner's son bob inherited the property. Neither True Owner nor the son was aware of Arthur's presence on the property. Eight years have elapsed since son Bob inherited the property. If the statute of limitations is 10 years, has Arthur acquired title by adverse possession?

Yes, because there is privity of estate between True Owner and Bob, so Arthur can add together the time that Arthur possessed against True Owner and Bob.

Athena entered property owned by True Owner and has remained there for a period longer than the statute of limitations. Assume that Athena's possession met all other elements for adverse possession. If Athena knew that the property was owned by True Owner, would Athena's possession be considered hostile?

Yes, but only in a jurisdiction that uses either the objective test or the bad faith/ intent to claim test.

In 2000, Tiffany made the mistake of wearing her rare blue diamond ring on a vacation to the ocean, where she lost the ring in the water. In 2002, Bill Beachcomber found the ring washed up on the shore. He showed this to a friend and said, "Don't tell anyone. I'm keeping this!" Word got out, however, and Bill's discovery was widely publicized by the both local and national newspaper and television and radio stations. Bill then agreed to let a local museum place the ring on display with a sign that read: "On loan from owner Bill Beachcomber." Tiffany was unaware of these facts. But in 2014, she was vacationing in the area again and saw the ring in the museum. Bill has rejected Tiffany's requests to have the ring returned to her even though she can prove it is hers by an inscription in the ring. If the statute of limitations in this jurisdiction is 10 years, has Bill acquired title by adverse possession?

Yes, unless the jurisdiction applies the "demand and refusal" or the "discovery rule" exception to the traditional rule regarding when the statute of limitations begins to run.

Statutes of limitations

set a statutory time period - ranging from 3 to 60 years - for bringing a lawsuit--if a person has wrongful possession of property, the true owner has a specific period of time to bring a lawsuit against the wrongdoer.

Actual (Constructive) Possession

the claimant must take actual possession of the real property.--The typical test for this is that the claimant must treat the adversely possessed property in the same way the true owner does. Exception: See Color of Title

18-11-106. Adverse possession.

(a) To establish adverse possession of real property, the person, and those under whom the person claims, must have actual or constructive possession of the property being claimed and have either: (1)(A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property. (B) For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or (2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of title. (b)(1) The requirements of subsection (a) of this section with regard to payment of ad valorem taxes shall not apply to a person or entity exempt from the payment of ad valorem taxes by law. (2) For the person or entity exempt from the payment of ad valorem taxes to establish adverse possession of real property, the person or entity must have: (A) Actual or constructive possession of the property being claimed and held color of title to the property for a period of aleast seven (7) years; or (B) Actual or constructive possession of the property being claimed and held color of title to the real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years. (c) The requirements of this section are in addition to all other requirements for establishing adverse possession. (d) This section shall not repeal any requirement under existing case law for establishing adverse possession, but shall be supplemental thereto, and, specifically, this section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title, or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.

Ark. Code Ann. § 18-61-101. Actions to recover land, tenements, or hereditaments.

(a)(1) No person or his heirs shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments after seven (7) years once his right to commence, have, or maintain the suit shall have come, fallen, or accrued. (2) All suits, either in law or equity, for the recovery of any lands, tenements, or hereditaments shall be had and sued within seven (7) years next after the title or cause of action accrued and no time after the seven (7) years shall have passed. (b) If any person who is, or shall be, entitled to commence and prosecute a suit or action in law or equity is, or shall be, at the time the right or title first accrued come or fallen within the age of twenty-one (21) years or non compos mentis, the person or his heirs, shall and may, notwithstanding the seven (7) years may have expired, bring his suit or action if the infant or non compos mentis, or his heirs, shall bring it within three (3) years next after full age or coming of sound mind. (c) No cumulative disability shall prevent the bar formed and constituted by the saving of this section. (d) This section shall not apply to lands which have been sold to any improvement district of any kind or character for taxes due the districts, nor to any taxes due any improvement districts, but the lien of these taxes shall continue until paid.