PROPERTY: TITLES - ADVERSE POSSESSION

In the law of adverse possession, what purposes are served by requiring the adverse possessor to enter and possess the property?

"In the law of adverse possession, the requirements of entry and possession serve to: (1) provide notice to the true owner of an adverse use, (2) start the statutory period for adverse possession, and (3) identify which portion of the property is subject to adverse possession.

In the law of adverse possession, what does it mean to say that a property owner is under a legal disability?

A legal disability is some mental condition or other status that prevents the true owner from suing an adverse possessor. Such disabilities include infancy, insanity, mental incompetence, and sometimes incarceration.

In the law of adverse possession, what type of test is used by a minority of jurisdictions to determine whether possession is hostile?

A minority of jurisdictions use subjective tests to determining hostility. Two types of subjective tests exist in these jurisdictions. Both tests focus on the adverse possessor's subjective mental state. In some jurisdictions, the adverse possessor must honestly believe that the adverse possessor has title to the property. In these jurisdictions, a knowing trespasser cannot acquire title by adverse possession. Other jurisdictions take the opposite view, holding that the adverse possessor must deliberately intend to violate the true owner's rights. In these jurisdictions, only a knowing trespasser can acquire title by adverse possession.

What is adverse possession?

Adverse possession is the open possession of another person's property in a way that is hostile to that person's ownership. Adverse possession is also the name of the legal doctrine that allows a person to acquire title to real property without the owner's consent by using or occupying the property for a sufficient time and in a sufficient manner.

What is adverse possession under color of title?

Adverse possession occurs under color of title if the adverse possessor has a written document, such as a deed, that purports to give the possessor title to the property but for some reason is legally ineffective to do so.

In the law of adverse possession, what characteristics make possession exclusive?

Generally, exclusive possession means that the adverse possessor must use the property for the adverse possessor's own benefit, and in a way that is not compatible with the true owner's rights.

At what point in time does the statutory possession period for adverse possession begin to run if a legal disability arises in the property owner before the adverse possessor's entry?

If a legal disability arises in a property owner before the adverse possessor's entry, the statutory period will not begin to run until the disability is removed. The relevant statutes typically give the owner a specific time after the disability ends to sue the adverse possessor.

If a period of continuous possession is substantially interrupted, what effect does the interruption have on the running of the statutory period?

If a period of continuous possession is substantially interrupted, then the statutory period for adverse possession starts over. Whatever time the adverse possessor previously accrued toward the statutory period is lost and may not be added to later periods of possession. Per Emmanuels, a one-year absence is a substantial interruption.

In the law of adverse possession, what is hostile possession?

In the law of adverse possession, possession is hostile if it occurs without the true owner's permission. Put differently, possession is hostile if the adverse possessor acts as though her rights are superior to those of the true owner. Thus, hostility in adverse possession does not mean malice or ill will. Rather, it means acting in a way that derogates the true owner's rights in the property. The element of hostility is sometimes labeled adverse possession under a claim of right. However, this is simply an alternative term for hostility and should not be confused with adverse possession under color of title.

Will continuous possession be substantially interrupted if the adverse possessor is occasionally absent from the property?

No. Continuous possession will not be substantially interrupted if the adverse possessor is occasionally absent from the property. Continuous possession does not require that the adverse possessor constantly be present. A reasonable owner's use may include periods of physical absence depending on the nature of the property. Thus, an adverse possessor's absence from the property is not a substantial interruption if the absence is consistent with a reasonable owner's use.

In the law of adverse possession, does exclusive possession require that the adverse possessor be the only person to use the property during the statutory period?

No. Exclusivity is not destroyed merely because other people enter or use the property; even the true owner might allow entry and use by others. Rather, the adverse possessor must act as if everyone else's rights in the property are inferior to those of the adverse possessor. Thus, if anyone else enters or uses the property, it generally must be with the consent of the adverse possessor or in subordination to the adverse possessor's claim. Sporadic entries by others, including the true owner, will not necessarily defeat an adverse-possession claim.

Are future interests transferred by adverse possession?

No. Future interests are not transferred by adverse possession. Only possessory estates are transferred by adverse possession. Further, in most states, someone who holds a future interest cannot seek to eject an adverse possessor until the future interest ripens into possession. Thus, once the future interest becomes a possessory estate, the statutory period starts over as between the adverse possessor and the new owner.

Generally, will a property owner's disability affect the running of the statutory period for adverse possession if the disability arises after the adverse possessor first enters the property?

No. Generally, a disability that arises in the property owner after the statutory period begins to run will not interrupt the running of the period.

If a fee owner sells or otherwise transfers property, does the statutory period for adverse possession start over?

No. If a fee owner sells or otherwise transfers property, the statutory period for adverse possession does not start over. The statutory period for adverse possession is not affected when successive owners transfer fee ownership.

Is an adverse possessor in exclusive possession if other people use the property without acting in subordination to the adverse possessor's claim?

No. If the adverse possessor shares possession with someone else who (1) does not act in subordination to the adverse possessor's claim and (2) does not act in concert with the adverse possessor, then the possession is not exclusive and will not qualify for adverse possession.

In general, may one cotenant establish adverse possession against other cotenants?

No. In general, a cotenant may not establish adverse possession against other cotenants. All cotenants are jointly entitled to possess the property. Thus, a cotenant is never a trespasser on the land. However, some jurisdictions allow adverse-possession claims if the cotenant physically excludes the other cotenants from the property or otherwise provides clear notice of an intent to claim exclusive possession.

In general, may an adverse possessor obtain title to a tract of property beyond the portion that the adverse possessor actually possesses?

No. In general, an adverse possessor may obtain title only to the specific portion of the property that the adverse possessor actually possesses for the statutory period. The major exception to this rule is adverse possession under color of title.

In general, must an adverse possessor pay the taxes on the property to establish adverse possession?

No. In most jurisdictions, the adverse possessor does not need to pay taxes on the property to establish adverse possession. Nonetheless, such payment is often strong evidence to support an adverse-possession claim. A few jurisdictions do treat payment of taxes as a necessary element of adverse possession.

In a majority of states, does acquisition of title by adverse possession eliminate encumbrances on the property?

No. In most states, acquisition of title by adverse possession does not eliminate any mortgages, liens, restrictive covenants, easements, or other encumbrances on the property. However, in most states, an adverse possessor will take free of a restrictive covenant if the adverse possessor has used the property in violation of the covenant throughout the statutory period. A minority of states do allow an adverse possessor to acquire title free of some or all encumbrances.

In general, does an adverse possessor exercise exclusive possession if the general public uses the property in a way that is consistent with a public right to do so?

No. Possession generally is not exclusive if the general public uses the property in a way that is consistent with a public right to do so. However, this rule does not apply if the public's use of the property is merely casual or sporadic. Nor does this rule apply if the public uses the land with the adverse possessor's permission in recognition of the adverse possessor's claim.

Will possession be considered hostile for purposes of adverse possession if the adverse possessor acknowledges the true owner's superior rights?

No. Possession is not considered hostile for purposes of adverse possession if the adverse possessor acknowledges the true owner's superior rights. To establish hostility, the adverse possessor must not act in a way that acknowledges the true owner's superior rights. Thus, possession is not hostile if it occurs with the express or implied consent of the true owner: such possession would be subordinate to, not in violation of, the true owner's superior title.

Is there a uniform, modern statutory period for adverse possession?

No. There is no uniform, modern statutory period for adverse possession. The modern statutory period varies among the states from as little as five years to 20 years or more. Moreover, the statutory period might vary within a state depending on the type of adverse use. At common law, the required period for adverse possession was 20 years.

Under the common law, can someone acquire title from a government owner by adverse possession?

No. Under the common law, someone cannot acquire title from a government owner by adverse possession. This remains the majority view today.

A man acquires title to land by adverse possession. He then gives possession of the land and his personal property by bill of sale to a buyer. Does the buyer have title?

No. You got this wrong on Emmanuels. The man must convey title just like any other owner. The attempted transfer here does not satisfy the statute of frauds.

In what manner must someone treat another person's property to possess that property for purposes of adverse possession?

Possession in the context of adverse possession means that someone must treat another person's property in a manner that a reasonable owner would. This use can vary with the nature of the property (e.g., possession of a tract of woodland might require different activities than possession of a residential lot). A few states specify by statute what activities are sufficient to constitute possession.

What is the definition of continuous possession for purposes of adverse possession?

Possession is continuous if it goes on without substantial interruption for the statutory period.

In the law of adverse possession, what characteristics make possession open and notorious?

Possession is open and notorious if the adverse possessor uses the property in a way that would suggest to a reasonable observer that adverse possessor owns the property. This is sometimes described as using the property in a way that would be apparent upon a reasonable inspection of the property. The true owner will be charged with notice of such uses whether or not the owner actually conducts an inspection. A use may also be considered open and notorious if the use is commonly known in the community or known to those who might reasonably be expected to tell the true owner of the use. In addition, the adverse possessor must not conceal or hide the adverse possessor's use. Thus, some courts add that possession must be visible, though this is often simply another label for open and notorious possession.

What is the Maine doctrine of adverse possession for boundary-line disputes?

The Maine doctrine is a minority test for hostility in cases in which adverse possession results from a dispute over the location of a boundary line. Under this doctrine, hostility exists in a boundary dispute only if the adverse possessor subjectively intends to violate the true owner's rights. In other words, hostility is not established if the encroaching neighbor (1) mistakenly believes that the encroaching neighbor is not encroaching and (2) would withdraw if the encroaching neighbor learned so. Maine has since overruled this doctrine by statute. The majority of states reject the Maine doctrine and apply the objective test for hostility in boundary disputes, as in other adverse-possession cases.

An accountant was the owner of record of a property. A squatter had been in adverse possession of the property for six years, at which point he tired of the weather and told his friend about the adverse possession and his plans to leave for a warmer climate. At that moment, the friend immediately resolved to adverse possess the property. Five years later, the friend was still doing so. In a state with a 10-year statutory period of adverse possession, who is the rightful owner of the property?

The accountant is still the rightful owner of the property, because the friend cannot tack his possessory time period onto the squatter's. Tacking allows an adverse possessor to count someone else's previous adverse possession toward the statutory period. Tacking occurs only if the successive parties are in privity with one another, i.e., if they succeed one another by conveyance, devise, descent, or some other process showing a deliberate transfer of property rights. Here, the squatter told his friend he was leaving the property, but there was no deliberate transfer of property rights from the squatter to the friend. Thus, there was no privity between the squatter and the friend, and the friend may not successfully claim tacking to add his five-year possession to the squatter's six-year possession to satisfy the statutory period. As a result, the accountant still owns the property.

What is tacking in the law of adverse possession?

The principle of tacking is a special instance of continuous possession. Tacking allows an adverse possessor to count someone else's previous adverse possession toward the statutory period. The current adverse possessor thus tacks on the time of the prior possession. Tacking occurs only if the successive adverse possessors are in privity with one another, i.e., if they succeed one another by conveyance, devise, descent, or some other process showing a deliberate transfer of property rights from one adverse possessor to the other.

In the law of adverse possession, what is the purpose of requiring open and notorious possession?

The purpose of requiring open and notorious possession is to put the true owner on notice that the adverse possessor is laying claim to the property.

An architect was the owner of record of a property. A squatter began to adversely possess the property. Before the expiration of the statutory period for adverse possession, the architect discovered the squatter's activities. The architect verbally warned the squatter to leave and also wrote the squatter a letter asserting the architect's rights to the property and demanding that the squatter leave the property immediately. The architect did not take any other steps, and the squatter did not vary from her use of the property. All other elements of adverse possession were satisfied. The only question was whether the squatter continually possessed the property. Who owns the property after the expiration of the statutory period for adverse possession?

The squatter owns the property, because she has met the continuity requirement. Continuous possession is possession that satisfies all the requirements for adverse possession, without substantial interruption, for the statutory period. A true break in possession restarts the statutory period. A true break may occur if the true owner retakes the property in an open and notorious manner. A mere oral or written assertion of the property owner's rights is not enough; the owner must act with the intent to oust the adverse possessor. Here, the architect's oral rebuke and her letter demanding that the squatter quit the property do not rise to the level required for the architect to retake the property in an open and notorious manner. Thus, the squatter's continuity of possession was not broken, and the squatter will own the property after the expiration of the statutory period.

At what point in time does the statutory period for adverse possession begin to run?

The statutory period for adverse possession begins to run when the adverse possessor first enters the property in a way that gives the true owner a cause of action for trespass or ejectment. This is also described as the time when the adverse possessor's activities first put the owner on notice of the adverse use.

What judicial action can a true property owner seek to interrupt an adverse possessor's continuous possession and avoid the transfer of title?

The true property owner can interrupt the adverse possessor's continuous possession by suing the adverse possessor before the end of the statutory period and obtaining a judgment in the owner's favor. Depending on the jurisdiction, the true owner might sue for trespass, for ejectment, or to quiet title. If the owner files suit before the statutory period ends, the judgment will be effective to interrupt possession even if judgment is entered after the statutory period ends.

What are the elements of adverse possession?

To trigger adverse possession (i.e., to acquire title to property owned by someone else without the owner's consent), the person claiming title must actually enter and possess property owned by another, and the time and manner of possession must be: (1) continuous, (2) hostile to the interests of the true owner, (3) open and notorious, (4) for the statutory period of possession, and (5) exclusive to the person claiming title through adverse possession. These elements can be summarized by the acronym CHOSE (continuous, hostile, open and notorious, statutory period, exclusive).

In the law of adverse possession, what is the objective test for determining whether possession is hostile?

Under the objective test, possession is hostile if the adverse possessor uses the property (1) as a reasonable owner would and (2) does so without permission from the true owner. Thus, this test focuses on the adverse possessor's actions. The adverse possessor's subjective mental state is irrelevant. The objective test is the majority rule in American law.

Will continuous possession be substantially interrupted if the adverse possessor voluntarily abandons the property?

Yes. Adverse possession will be substantially interrupted if the adverse possessor abandons the property through a voluntary act with the intent to relinquish the property.

Will continuous possession be substantially interrupted if the adverse possessor is ousted by someone other than the true owner?

Yes. Adverse possession will be substantially interrupted if the adverse possessor is ousted by someone other than the true owner or if the adverse possessor otherwise yields to any person's claim to superior title.

May multiple adverse possessors exercise adverse possession at one time?

Yes. Adverse possessors may jointly possess the same property as against all others if they act in concert with one another. Multiple, joint adverse possessors will acquire title as concurrent owners, usually as tenants in common.

May an adverse possessor acquire title to the entire property under color of title despite entering and possessing only a portion of it?

Yes. An adverse possessor may obtain title to the entire tract of property under color of title if the adverse possessor satisfies the requirements for adverse possession as to a part of the tract that has some reasonable relationship to the whole. This usually means that the adverse possessor must occupy enough of the property to put the true owner on notice of the adverse use.

If an adverse possessor satisfies all elements of adverse possession for the statutory period, does the adverse possessor automatically obtain title to the property?

Yes. If an adverse possessor satisfies all elements of adverse possession for the statutory period, then title will automatically pass to the adverse possessor upon the expiration of the period. Generally, no judicial involvement or formal documentation is required to transfer title.

Under modern law, is it possible for someone to acquire title from a government owner by adverse possession?

Yes. In a departure from common law, some states, and the federal government, have statutes allowing some adverse-possession claims against themselves. These statutes might impose a longer-than-normal period of possession, limit the types of land subject to adverse possession, or require the adverse possessor to conduct certain activities on the land to establish a claim.

In general, does adverse possession under color of title require the adverse possessor to have a good-faith belief that the adverse possessor is legally entitled to the property upon making entry?

Yes. In most jurisdictions, adverse possession under color of title requires that at the time of the initial entry the adverse possessor must believe in good faith that the adverse possessor has lawful title to the property. The adverse possessor need not retain this good-faith belief throughout the period of possession, so long as the adverse possessor had good faith initially.

If someone possesses property with the true owner's permission, can that possession become hostile if the owner withdraws permission?

Yes. Possession that begins with permission can become hostile if the owner withdraws permission or if circumstances indicate that the owner's permission has ended. In addition, the now-adverse possessor must give some clear indication to the owner that the now-adverse possessor intends to continue in possession without the owner's consent.

Can the true owner interrupt an adverse possessor's continuous possession by physically and openly reentering or retaking the property?

Yes. The true owner can interrupt an adverse possessor's continuous possession by physically and openly reentering or retaking the property with the intent to assert the owner's superior claim. The owner generally must act in a way that would put a reasonable person on notice of the owner's intent to retake the property. Thus, the owner's sporadic or casual presence on the land might not be enough to interrupt possession.

Can a person adversely possess property by leasing it and counting the tenant's use as his own?

Yes. Use by the tenant is constructive possession.