Adverse Possession

What are some policy reasons for the Adverse Possession Doctrine?

+ Promote the economically productive use of land by rewarding possessors who make economically productive use of land and penalizing owners who neglect and don't use their land. + Promote certainty in land titles and judicial efficiency and integrity in resolving boundary disputes through objective facts. + Promote free alienation of land by providing a mechanism for clearing up land titles. + Recognize and protect reliance interests in long-standing possessory arrangements, the personhood connections that possessors develop with the land, and the investments that they make in improving and using land. + The centrality of possession to rightful claims to property ownership (e.g., rule of capture and the Barry Bonds baseball).

What are some policy reasons against the Adverse Possession Doctrine?

- Encourages squatters and theft of land. - Anti-wilderness bias (forces human use and alteration of ecological lands instead of letting them serve ecological/natural/wilderness functions) - Creates uncertainty in land titles and transactions by creating an alternative possible source of ownership (i.e., possession) that may differ from recorded title documents (3rd parties want to rely on recorded title documents). - Either/or ownership determination doesn't include compensation: possessor may get owner's land without having to pay for it, and owner may be able to eject possessor and get the benefit of the possessor's improvements to and care of the property without paying for them.

What are the six elements of adverse possession?

1. Actual Possession 2. Hostile Possession 3. Open and Notorious Possession 4. Exclusive Possession 5. Continuous Possession 6. Possession Under Claim of Right

What statutory periods are placed on adverse possession?

1. Statute of Limitations 2. Tolling Statutes

What is the rule of the ITT Rayonier test?

Adverse possession does not require a good faith claim of ownership. Shared use of the disputed land defeats the exclusivity requirement.

What is the rule of the Beacon Hudson case?

Although the property was used for only one month of the summer of each year, continuity of possession was established by customary seasonal use. Continuity case. Adverse possessor wins.

What is the rule of the Kunto case?

Although the property was used for only the summer of each year, continuity of possession was established. Privity of estate, which is essential for tacking, exists where the original adverse possessor transfers actual possession to his successor, even without a deed. Tacking case.

In some states, such as ______, the adverse possessor has to pay all the property taxes on the property.

California

What is the rule of the Halpern Case?

Claim of right requirement of adverse possession requires a showing of good faith. A knowing trespass cannot ripen into title ownership. There is a rebuttable presumption that hostile possession establishes a good faith claim of right.

______ in adverse possession is not defeated by ____ in ________ or use that are considered normal or _________ for an owner who is nonetheless exercising _______ and control over property.

Continuity; gaps; occupancy; reasonable; dominion

What is the rule of the Marengo Cave case?

For adverse possession of an underground cave with unclear boundaries, the adverse possessor must occupy it so openly and notoriously as to give the record owner notice of rights asserted inconsistent with his continued possession. Extremely difficult to nearly impossible to obtain ownership of underground cave by adverse possession.

What is basic idea of the doctrine of adverse possession?

If a landowner fails to exclude others from their property, the landowner might lose ownership of the property (or the portion of the property from which they failed to exclude others).

______ occupation of the property is one kind of evidence/indicia of dominion and control.

Physical

What are the two types of situations in which adverse possession applies?

Squatters and resolving property boundary discrepancies

What is a tolling statute?

State legislatures may have provided by statute that the statute of limitations stops running - is tolled - if the owner has certain circumstances or disabilities which the legislature has deemed to be sufficient reasons why they should be excused from caring for and paying attention to their property.

What is continuous possession?

The adverse possessor (and those in privity with the adverse possessor) has/have possessed the property without interruption for the statutory period, taking into consideration the type of property and the manner in which a true owner would possess the property.

What is actual possession?

The possessor has exercised dominion and control over the property for the statutory period.

What is open and notorious possession?

The possessor has occupied and/or used the property in such a manner as to put the whole world on notice, including the owner, that the possessor is treating the property as their own, for the statutory period.

What is hostile possession?

The possessor has treated the property as their own without the title holder's (owner's) permission for the statutory period.

In about 10 states, the adverse possessor has to cultivate, improve, and enclose the property. Name some of these states.

These include California, Florida, and New York.

What would be the reasons for having a tolling statute?

Typical reasons might include that the owner is a minor (under the age of 18), is mentally incapacitated, or is in military service or overseas military service. The circumstances are within the legislature's discretion to determine.

_____ of the property in a manner that a _____ owner would use the property, considering the type/nature of the property, is another kind of evidence/indicial of dominion and control.

Use; true

If the owner _______ ______ of the possessor's possession of the owner's property (i.e., the possessor treating the property as their own), the possession is ____ and _______.

actually knows; open; notorious

What is quiet title?

cause of action for a judicial declaration as to who is the owner of the property.

What is trespass?

cause of action for monetary damages from a physical invasion or unauthorized possession of one's land. Trespass is not the cause of action to obtain or recover physical possession.

What is ejectment?

cause of action to claim or recover possession from another.

There is no _______ ___ tolling.

common law

If the owner ______ to the possessor's possession (gives permission or authorization), there is __ _____ possession.

consents; no hostile

Relatively ________ possessions by _______ possessors can be "_______" together if the possessors are considered "in privity" with ____ ______ (i.e., transferring their possession from one to the other).

continuous; different; tacked; each other

basic definition of possession

dominion and control over property.

Landowners have the right to _____ others from their property and to ______ to give them permission to use, _______, and/or possess their property.

exclude; refuse; occupy

Adverse possession cannot operate to divest the ______ _____ from ______ to federal government ______.

federal government; title; lands

There can be no adverse possession against the _______.

government

Adverse possession doesn't require a ______ to search every area or ______ of their property on an _______ basis.

homeowner; aspect; ongoing

What is the Doctrine of Agreed boundaries?

mutual agreement to clear up uncertain boundaries

What is the majority test to possession under claim of right?

objective - the adverse possessor has possessed the property under a claim of right if the evidence shows that the possessor has treated the property as their own, without the owner's permission, for the statutory period. This is exactly the same test at the hostile possession element. If the facts show that the hostile possession element has been met, then the element of possession under claim of right has automatically been met in an objective-test jurisdiction.

If the adverse possessor grants ________ to someone, there's still ______ possession because relatively _______ possessions by different possessors can be "______" together if the possessors are considered "__ ______" with each other (i.e., transferring their possession from one to the other).

possession; exclusive; continuous; tacked; in privity

What are the two tests of possession under claim of right?

the majority of states apply the objective test and the minority of states apply the subjective test.

Whether a state allows the statute of limitations to be tolled more than one time depends on:

the state statute.

If the owner gives permission to a _____ _____ to use the property and that third party has possession of the property during the _______ _______, the _____ of the adverse possession is _____.

third party; statutory period; exclusivity; broken

What are reasonings for using the objective test?

1. Actions of treating property as one's own are much easier to establish in court with evidence of the possessor's actions than proving the possessor's subjective state of mind. 2. o Encourages landowners to take care of their land and punishes them if they neglect it (regardless of the possessor's state of mind). 3. Rewards adverse possessors who make productive use of land if the landowners aren't doing so. 4. An adverse possessor develops a personal attachment to land and makes investment in it over time, regardless of their original belief about whether or not they owned it.

What are reasons for applying the subjective test?

1. Doesn't reward the knowing or intentional theft of another's property. 2. Tends to limit successful adverse possession claims to judicial recognition of long-standing beliefs about where property lines are: subjective beliefs by both possessor and owner that possessor owns the portion of property in question.

What is the rule from the Tioga Coal Case?

Land is occupied under a claim of right when it is occupied without the owner's permission, regardless of the occupant's subjective state of mind.

What is exclusive possession?

No one who is adverse to the adverse possessor has possessed the property during the statutory period.

What is the basic rule of adverse possession?

One who meets the 6 elements of adverse possession for the statutory period (statute of limitations for adverse possession) automatically acquires legal title from the record title holder.

Examples of uses of property that are not possession:

guest to watch TV or use the swimming pool; crossing your property to get to my property (might be a prescriptive easement but not adverse possession, unless I exclude you from the pathway on your own property); gym user, movie or concert attendee, patron of restaurant, bar, coffee house, etc.

Examples of physical occupation that are not possession:

hotel guest, house sitter, friend or relative who's visiting for a short time, employee in the office that their company assigned to them

What are squatters?

o People who are intentionally trying to obtain ownership of someone else's land by possessing it (land theft?)

What is the Prescriptive Easement Doctrine?

obtaining an easement interest through adverse use.

What is the Implied Dedication and Custom Doctrine?

obtaining public use rights through long-standing use.

Consent may be ____, but mere ______ and _______does not constitute consent.

oral; awareness; inaction

An adverse possessor's claim to ownership might be only for ____ of the property. If I'm your neighbor and I start treating your side yard as if it's mine, I ____ ____be able to claim ownership of the entire side yard if I had ______ and control over only a 3-foot strip of your side yard.

part; would not; dominion

The doctrine of adverse possession ______ property owners who ______ their property.

punishes; neglect

The adverse possessor is usually interested in a ______ _____ action against the title ______, but only after the adverse possessor feels certain that they have met all the _______ of adverse possession for the _______ period (taking into account any tolling).

quiet title; holder; elements; statutory

If the owner does not know of the possessor's possession of the owner's property, the possession is still considered open and notorious if a _______ property owner would have _______ the possession by ______ ____ of the particular property in a way that a _______ property _____ would.

reasonable; discovered; taking care; reasonable; owner

Actions that might be considered the kinds of physical occupation and use that would be considered possession (dominion and control) include:

residing on the land; improving the land and/or structures; fencing the land as part of the possessor's land (i.e., a neighbor includes the owner's land as part of the neighbor's fenced land); and cultivating, grazing, pasturing, hunting, fishing, timber harvesting, or mining the land.

________ property is considered _______ possessed if the possessor occupies and uses the property during the ______ _______.

seasonal; continuously; proper season

Some states have specific _________ requirements that an _______ possessor has to meet, either in addition to or instead of the ______ ___ elements.

statutory; adverse; common law

What is the minority test for possession under claim of right?

subjective - the adverse possessor had a good faith belief that they owned the adversely possessed property (i.e., the adverse possessor's good faith belief that the property has always belonged to them). Obviously, if they are adversely possessing the property, their good faith belief was mistaken

What is the Color of Title or Claim Under a Written Instrument Doctrine?

title document that purports to provide ownership to possessor but is mistaken, void, or invalid

What is the statute of limitations on adverse possession?

· The statute of limitations on the title owner of land bringing a claim against a trespasser in order to prevent their adverse possession from ripening into title ownership by the adverse possessor is determined state by state by statute enacted by the state legislature. They range from 3 years to 60 years, depending on the state. There is no common law length to the statute of limitations for adverse possession. You can't just create one for your analysis.