Adverse Possession

Class Notes  October 24, 2017
The Doctrine of Adverse Possession
 Under the doctrine of adverse possession, one can acquire ownership of land without
the payment of money and without consent of the legal record owner.
 Permits an uninvited intruder who fulfills certain statutory and common law
requirements to acquire legal title to the land and to divest completely the record
titleholder's rights.
Elements of Adverse Possession  CATHOUSE
 Continuous
 Actual Possession
o Can show that I have actually possessed the land and you will see how possession
coincides with control and dominion over the land, do not have to be physically
 Taxes
o Some states require that the possessor actually pay the taxes—California does this.
Hard to establish.
o Not required in many jurisdictions.
 Hostility
 Open & Notorious
 Under a Claim of Right
 Statute of Limitations
o Different periods of time required by statute.
o Throughout the statutory period, the adverse possessor is building an original
inchoate title, that RIPENS into a full legal title once the period has run.
 Exclusivity
o Am I acting like an owner would act in exclusively possessing the land? I.E., am I
rejecting trespassers?
 Each element is a particular characteristic of the "possession," which is the exercise of
"dominion & control" over the property.
 The Adverse possessor must meet the STATE'S proscribed requirements for the
specified length of time.
Sample New York Statute on page 862-63:
 § 501. Adverse Possession Defined.
3. Claim of Right. A claim of right means a reasonable basis for the belief that the property
belongs to the adverse possession or property owner, as the case may be… this is a subjective
 § 511. Adverse Possession under written instrument or judgement AKA Color of Title.
Color of Title. A doc. that purports to convey title but fails to do so is a color of title. Most
common example is a void deed. If the deed were valid, the grantee would be the owner rather
than the adverse possessor. For example, statute of frauds violation definitely voids the deed,
or is executed by a minor, or a doc. with a forged signature all purports to give title to land but
fails to do so.
 RULE OF LAW: an adverse possessor who enters under color of title, may acquire
possession to the entire tract described in his document even though he may have only
possessed only part of the parcel described in the document. enter into even though he
may have only. Absent color of title and adverse possessor only obtains title ONLY to the
property actually possessed by her. When one enters possession under color of title no
further claim of right or further proof of hostility is required.
 Claim of Right possessing as an owner would possess with no written document. The
claimant is in possession as an owner with an intent to possess the land as his or her
own and not in recognition of, or a subordinate record title owner.
 Two Tests FOR Claim of Right
o Minority: Subjective Test—Good Faith Claim of Right
 Will only reward an adverse possessor title if the claimant truly believes
one owns the property but really doesn't.
o Majority: Objective Test –Bad Faith Claim of Right
 TEXAS falls into this category.
 One who knows they are trespassing, but claims the land as their own,
i.e., a land squatter/pirate because they have met all the elements of
adverse possession.
 Page 862 § 501(1)—NY ACCEPTS BOTH TESTS, FOR EXAMPLE, majority of
jurisdictions do this.
Possession that is Hostile, Adverse or Under a Claim of Right
Tioga Coal Co. Supermarkets General Corp.
 Issue: Whether, on the facts of this case, the lower courts were in error on the
questions of the hostility required to perfect a claim of adverse possession.
 If the true owner has not ejected the interloper within the time allotted for an
action in ejectment, and all other elements of adverse possession have been
established, hostility will be IMPLIED, regardless of subjective mind of the
Halpern v. The Lacy Investment Corp.
 That one must enter upon the land claiming in good faith the right to do so. To
enter upon the land without any honest claim of right to do so is but a trespass and
can never ripen to prescriptive title.
 Georgia Case.
ITT Rayonier, Inc. v. Arthur & Jane Bell
 Exclusivity element not met.
 The hostility/claim of right element of AP REQUIRES only that the claimant treat the
land as his own against the world throughout the statutory period. The nature of
his possession will be determined solely on the basis of the manner in which he
treats the property.
 Good faith no longer constitutes an element of adverse possession.
 Washington State—has waffled on which test should be applied.
The Requirement that the Possession be Exclusive
ITT Rayonier, Inc. v. Arthur and Jane Bell, part 2.
 While possession of property by a party seeking to establish ownership of it by
adverse possession need not be absolutely exclusive, "the possession must be of a
type that would be expected of an owner."
 Exclusive dominion over land is the essence of possession and it can exist in unused
land if others have been excluded therefrom. A fence is the usual means relied
upon to exclude strangers and establish the dominion and control characteristic of
 Use alone does not necessarily constitute possession.
 The Ultimate test is the exercises of dominion over the land in a manner consistent
with the actions of a true owner would make.
The Requirement that the Possession be Open & Notorious
Marengo Cave Co. v. Ross
 Knowledge either actual or imputed, of the possession of his lands by another,
claiming to own them bona fide and openly, that affects the legal owner thereof.
The Requirement that the Possession be Actual and Continuous; Tacking and Tolling
Howard v. Kunto
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