Adverse Possession

Exceptions to the requirement of "actual" possession

(i) Doctrine of Constructive adverse possession expands the scope to the full extent of the color of title under which the possessor makes the claim, (ii) Leased land.- leasing land to a third party constitutes possession for purposes of adverse possession

What are the requirements to acquire title by adverse possession?

(i) Hostile, (ii) Open and notorious, (iii) actual and exclusive, and (iv) continuous

Limitations to the doctrine of constructive adverse possession

1. The amount of land that is actually possessed must bear reasonable relation to the whole and, 2. The property must be unitary, in one seamless whole

When is possession "actual and exclusive"?

An adverse possessor will gain title only to land she actually occupies, but there are two exceptions.- see next card- Exclusive means that that possessor excludes others from possessing the property

When does the clock start to run in a fee simple determinable situation?

It starts to run upon the happening of the condition, because at that time, title went automatically to the grantor on the possibility of reverter.

When does the clock start to run for adverse possession against remainderman after the death of the life tenant?

It starts to run when the interest becomes possessory

What results if a grantor remains in possession? Is that considered hostile?

No, it is presumed to be there with permission. Same result for a hold-over tenant

Is title acquired by adverse possession marketable?

No, to make it marketable there must be a court action to quiet title.

What is "continuous possession"?

Possession may not be intermittent. It must be throughout the statutory period, unless the intermittent possession is the type the usual owner would make (summer home)

What is adverse possession?

The acquisition of title to real property if the owner does not take action to eject the possessor within the statutory period

When does the clock start to run in case of owner's disability?

The clock does not begin to run if the true owner was under disability: minor, prison, insanity, when the period for adverse possession started. If there was no disability when possession started, the clock starts running! There is no tacking of disabilities and no adverse possession against government land

When does the clock start to run in a fee simple subject to condition subsequent and the right of re-entry?

The clock does not start to run until the grantor exercises his right of reentry

How to show that the possession was "open and notorious"?

When it is the kind of use the owner would make of the land. The possession must be apparent to put the owner on notice that the trespass is occurring.

When is possession hostile?

When it is without the owners permission. If the possession started with consent of the owner, it does not become hostile until the possessor makes it clear to the owner that she is claiming hostility

Can two or more people obtain title by adverse possession?

Yes, and they would take as tenants in common

Can a co-tenant obtain title by adverse possession?

Yes, if she declared her intention to claim exclusive dominion

Does the adverse possessor take subject to a restrictive covenant?

Yes, if the possession is consistent with the covenant, and NO, if he violated the restriction during the limitations period

Is "tacking" allowed to claim title by adverse possession?

yes, an adverse possessor can tack her own period of possession with her predecessors, but privity is required.