Adverse Possession

{1}
Adverse Possession-Possession of property of another that is (a) Open &
Notorious (b) Exclusive and (c) Hostile (d) Actual, whereby it is (e) under a
claim of right & continuous, thus allowing the adverse possessor the
ability to acquire title to the property once the statute of limitations has
run
{2}
Remember- has the adverse possessor so acted on the land in question as to give
the record owner a cause of action in ejectment against him for the period defined
by the statute of limitations. If so, the record holder will have a chance to eject the
adverse possessor as long as the he acts within the statute of limitations. If the
adverse possessor meets the 5 prong test and the statute of limitations has run
(normally 20 years), then the adverse possessor will have a claim against the record
holder for ADVERSE POSSESSION.
{3}
Under a claim of Right- Claim of Right focuses on the adverse possessors actions
AND state of mind example-Tioga Coal v. Supermarkets The adverse possessors
state of mind doesnt matter! What matters is the possessors physical relationship
to the land over a sufficient length of time. This is the Majority View
Majority View- Claim of Right focuses on the adverse possessors actions AND
state of mind. However under the majority view (the objective approach) the
adverse possessor state of mind is irrelevant, as long as the adverse
possessor satisfies the other requirements.
Minority View- Under the minority approach, the (subjective approach) the
adverse possessor state of mind is relevant. The courts that follow the
minority approach are split on what constitutes the requisite state of mind.
Some require the adverse possessor to think he or she is rightfully entitled to
the property in question i.e. a good faith showing. Other courts require the
adverse possessor to know that he or she is not entitled to the property but
claim it anyway i.e.-the aggressive trespasser.
{4}
Color of Title- color of title ordinarily entitles the adverse possessor to not only the
land actually possessed, but also the land constructively possessed under the terms
of the written instrument
Constructive possession scope extends to lots that are side by side or touch
and concern another.

Absent color of title and adverse possessor is entitled to only as much land as
the adverse possessor actually possessed. (pg 156 examp pro)

{5}
Tacking- The process whereby an individual who is in Adverse Possession of real
property adds his or her period of possession to that of the prior adverse possessor.
The concept of tacking is frequently important in adverse possession cases,
especially in those jurisdictions with lengthy statutory periods where the
claimant is often the successor in interest to the original underlying adverse
possessor. The policy underlying tacking is the same as that underlying
adverse possession itself. Without the help of the tacking doctrine, there
would be few successful adverse possessors. Courts always insist, however
on privity and never permit tacking where one possessor abandons the
property and a new one enters without some sort of agreement
Privity-To tack adverse possessors, the possessors must be in privity.
Under the American view- privity requires some type of reasonable
connection between the adverse possessors- a voluntary transfer or some
meeting of the minds- so as to justify permitting the latter adverse possessor
to combine the periods of adverse possession. The focus is on the
relationship between the adverse possessors. The adverse possessor has to
earn the right to tack or reasonably be entitled to expect to tack. So privity
exist where the transfer of possession is by agreement, gift descent or devise
(the right to possession is passed through intestacy or by will. The American
view embodies the earnings/expectations theory of adverse possession
Under the English Approach- as long as there is no significant temporal
gap in possession between successive adverse possessors, the adverse
possessors may tack their periods of adverse possession. As long as there is
no gap the true owner has notice of the claim of adverse possession. The
English view focus more on punishing the true owner for sleeping on his or
her rights and not checking the property during the statutory period. Under
the PENALITY approach, also known as the statute of limitations approach,
the relationship between the adverse possessors does not matter so long as
there is no significant gap.
Example- O owns Greenacre. In 1980, A enters adversely upon Greenacre. In
1995, B fraudulently tells A that he owns Greenacre and that A has to has to
go. (A had 15 years of adverse possession time) A leaves and B immediately
enters the property and uses it in a manner which satisfies the requirement
for adverse possession. Assuming the statute of limitations for adverse
possession is 20 years. In 2005, who owns the land?

Answer- b owns the land only if the jurisdiction applies the statute of
limitations/penalty approach. A had 15 years of adverse possession time. B
had 10 years of adverse possession time. B used (tacked) As 15 years to his
time, thus having a total of 25 years.
{6}
Tolling- Tolling statues, in certain instances an adverse possessors fulfills all the
requirements for the entire statutory period still may not gain title to the land. Every
Jurisdiction has a tolling statute that stipulates that certain disabilities such as
being under the age of majority or serving in the arm forces, will toll (i.e. stop) the
statute of limitations from running against the record owner.
{7}
Hostility/claim of right element-possession requires that only that the claimant
treat the land as his own as against the world throughout the statutory period.

{8}
Exclusive- possessing the property to the exclusion of the record owner. Possession
by a party seeking to establish ownership of it by adverse possession need not be
absolutely exclusive. The exclusive possession must be one of a type that would be
expected of by an owner.
Example- two people are claiming they own the land, the exclusive element
will be lacking if the alleged adverse possessor has shared the use of the
disputed area.
Example- permission to use the land by the record owner, one cannot make
a claim for adverse possession if the record owner gave the one claiming
adverse possession permission to use the land
Example- exclusive possession over land is the essence of possession and it
can even exist in unused land if others have been excluded from it. i.e. I buy
a large parcel of land but hardly use it, however I put up a fence around the
entire property. The fence will suffice for exclusive dominion over the
property.
{9}
Possession must Actual- The adverse possessor must do some overt actPhysically occupy the property in some manner. i.e. fencing, farming , maintain the
property as a true owner wood.
{10}
Possession must be Open and Notorious- The mere possession of the land is
not enough. It is knowledge actual or imputed, of the possession of his lands by
another, claiming to own them bonafide and openly, that affects the legal owner

thereof. Where there has been no actual notice, it is necessary to show that
possession of the disseisor (the depriver) was so open and notorious and visible to
the amount that the inference that the owner must or should have known of it.
Possession must be so notorious, so conspicuous that it is generally known and
talked of by the public
{11}
Continuity- continuity will be satisfied if all the other elements are met for the term
of the statute of limitations (normally 20 years)
Continuity of possession may be established although the land is used
regularly for a certain period of the year. It is not always necessary that the
occupant be actually upon the premises continually.
Example- IF the land is occupied/ during a time of the year it is being capable
of being used, there is sufficient continuity- i.e. a beach house, farming
during planting season.
{12}
Prescriptive Easement-an easement upon another's real property acquired by
continued use without permission of the owner for a period provided by state law to
establish the easement.