Module 5: Owning Real Property: Adverse Possession

Rationales for Adverse Possession (4)

-Preventing Frivolous Claims -Correcting Title Defects -Encouraging Development -Protecting Personhood

Privity

A connection or relationship between two parties, each having a simultaneous or successive interest in the same piece of real property - Horizontal - Relationship between the two original parties to the promise. - Vertical - Concerns the relationship between an original party to the promise and his successor.

Van Valkenburgh v. Lutz

A party takes adverse possession of a property owned by another when he takes actual possession of it, encloses it and/or makes improvements to it, for statutory period of years.

Rationales; Encouraging Development

Adverse Possession may be viewed as a legal tool to encourage economic development. Under this view, it reallocates title from the idle owner to the industrious squatter, this promoting the productive use of land.

Good Faith Test

In some jurisdictions, the adverse claimant must believe in good faith that he owns the land.

Objective Test

Majority View In most jurisdictions, the adverse claimant's state of mind is irrelevant. If he occupies the land without the permission of the owner and meets the other adverse possession requirements, this test is met.

Bad Faith Test

Minority Rule A few decisions suggest that the adverse claimant must know that he does not own the land and intend to take title from the owner.

Elements of Adverse Possession

OCEAN Open Continuous Exclusive Adverse Notorious

Tacking

One APer may tack on to his time with the land his predecessor's time, as long as there is privity, which satisfied by any non-hostile means, such as K, deed, or will. The law allows you to convey your time accrued through adverse possession to another. This conveyance has to be formally done as successive trespasses will not suffice.

Howard v. Kunto

RULE: Where several successive purchasers received record title to tract A under the mistaken belief that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.

Tioga Coal v. Supermarkets General

Rule: Subjective hostility is not required to establish adverse possession. As a result, adverse possession may be established even if the possessor believes that there is no other claim to the subject property or that he is himself the true owner. What matters are the physical facts and whether the circumstances would notify the true owner that another is claiming ownership of the land. This requirement of intent against the true owner is unfounded.

Fulkerson v. Van Buren

Rule: Under Arkansas law, a person who does not demonstrate a clear, distinct, and unequivocal intention to hold a property adversely for the length of the statutory period cannot take title by adverse possession. To establish title by adverse possession, one must prove that he or she had been in possession of the property continuously for over seven years and that the possession was visible, notorious, exclusive, hostile and with the intent to hold the property against the owner.

Gurwit v. Kannatzer

Rule: Under Missouri law, a person whose possession of a property is hostile, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years may gain title to that property by adverse possession.

Rationales; Protecting Personhood

Supreme Court Justice Oliver Wendel Holmes, Jr. offered another explanation for adverse possession, which echoes personhood theory: "A thing which you have enjoyed and used as your own for a long time . . . takes root in your being and cannot be torn away without your resenting the act . . ."

Rationales: Correcting Title Defects

Technical mistakes often occur in the process of conveying title to land. For example, the property description in a deed might contain an error. Adverse possession resolves such problems protecting the title of the person who actually occupies the land. Under this model, lengthy possession serves as proof of title.

Actual Possession

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

Exclusive Possession

The claimant's possession cannot be shared with the owner or with the public in general.

Continuous Possession

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

Open and Notorious Possession

The claimant's 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.

For the Statutory Period

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

Rationales; Preventing Frivolous Claims

Under the dominant view, adverse possession is seen as a special statute of limitations for recovering possession of land. Thus, like any other statute of limitations, it bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims. It also provides the occupant with security of title, thus encouraging the productive use of land.

Adverse and Hostile Possession

claimant does not have the authorization/consent of the owner and encompasses a certain state of mind Tests: Good Faith Objective - Majority Rule Bad Faith - Minority Rule