Professor Fran Ortiz
1) Adverse Possession (AP)
AP is a legal means of acquiring title to real property through actual entry, exclusive possession, adverse under a claim of right, open and notorious and continuous for a statutory period of time.
1. Actual Entry: AP must actually enter land, allowing owner a trespass COA
2. Open and notorious: Possession must be visible and obvious such that it gives
landowner reasonable notice of trespass
3. Exclusive Possession: Possession must be exclusive of the true owner and the
public at large. Can adversely possess property with others who are not true
4. Adverse and under a claim of right: Adverse without landowner’s permission
Claim of right: (same as claim of title) – claimant is in possession as owner, w/
intent to claim the land as his/her own and not in recognition of or subordination
to, the last title owner. standard to determine AP’s intent varies by jurisdiction
I. Objective – trespasser's state of mind irrelevant – English view
II. Good Faith – T thought he owned it – Can be proven by showing color
of title (claim of possession by defective written instrument)
III. Aggressive Trespasser know he didn't own it, but intended to take
5. Continuous for the statutory period: Requires occupation pattern of true owner, not necessarily continuous. Sol varies by jurisdiction. Typically not more than 20 years.
Abandonments by AP's – depends on intent of AP'r; starts new SoL running
Interruption of Possession – period of interruption doesn't count toward statutory period, but does not start SoL over
B. Color of Title: Claim of title to land founded on a written instrument (deed, will) or judgment that is defective and invalid
a. Grantor doesn't own land conveyed by deed
b. Grantor is incompetent to convey
c. inaccurately describes property
d. deed improperly executed
a. Claim under color of title not required for AP
b. Judgments for claims founded on color of title usually more lenient than those not
c. Some states have shorter SoL for AP with color of Title
a. Under Good Faith claim of right standard, color of title required to complete AP
English Rule: NO privity required between adverse possessors.
American rule: privity is required for adverse possessors to tack
Privity: a voluntary transfer of an estate from one occupant to another
D. Adverse possessors take subject to whatever easements/real covenants/equitable servitudes are in existence on the property.
1. death removes a disability
2. at the point the disability is removed, the SOL starts ticking
3. disabilities can’t be tacked à focus on disability of person with right to eject upon entry of AP’or
4. disability must be present at entry
5. if there are two disabilities, take the longer of the two
F. Title acquired
New title: AP creates a brand new title in the AP’or (as opposed to taking title from the old owner)
Adverse possessors are only title owners, NOT record owners. In order to prevail in a quiet action there must be a registration of title on record over others… If someone has tried multiple avenues of attempt to assert highest title over a property, but failed, then adverse possession is a last resort
The adverse possessor takes title to the property subject to all encumbrances (mortgages, liens, easements, real covenants and equitable servitudes) that were already in existence as of the moment of initial entry.
The adverse possessor takes title to the property free of any encumbrances that were granted to third parties by the record owner of the property after the moment of initial entry.
G. Future interest
FI is immune from adverse possession until the interest holder is entitled to immediate possession of the land. The statutory period for AP does not begin running until the person holding the future interest is entitled to take possession of the land.
FI must be present at the time of AP’er entrance. You adversely possess the estate you enter upon; once there is an entry upon an owner, AP begins and possession is not defeated or interrupted by subsequent transfers by the owner, whether by conveyance, will or intestacy.
Example 1: O owns Whiteacre. In 1959, O conveys Whiteacre to B for life, remainder to C. In 1960, A enters adversely. Statute of limitations is 20 yrs. In 1985, B dies. C is now entitled to possession and has until 2005 to eject A. (In 1980, A acquired title to B's life estate by adverse possession, but this interest is terminated on B's death)
Example 2: Entry prior to O's transfer. if A had entered before O created the remainder, the statute would run against O and his successors in interest — meaning C would not be able to eject A after the statute of limitations ran out
AP’or acquires by AP the estate of the person who was in possession when AP’or wrongfully entered. So if the current possessor has a life estate, AP’or gets a life estate. If the current possessor has a fee simple absolute, AP’or gets a fee simple absolute, and so on.
ing or using any of the other acres; after SOL. B can use deed to show constructively possessed the entire 100 acres. Court deems AP'er to have possession of whole by virtue of color of title, even though AP'er may have only entered part of tract (but only in absence of other claimants).
Claim extends only to such part of the land actually occupied or controlled in a manner consistent with ownership of the premises.
Example: 1970, O is record owner and in possession of Blueacre 100 acres. 1980, A acquired deed from Z for Blueacre, A enters and farms back 40 acres. 2010 A sues to evict O. Answer A gets 40 and O gets 60 even if O’s deed is invalid, because both in Possession.
Example 3 same facts… O's deed is invalid. A only gets 40 acres and o gets 60 acres because both are in possession.
Example 4 – 2 tracts of land: X owns 1, Y owns tract 2. Neither X nor Y is in possession . . . Z conveys both lots to A under an invalid deed. . . . A enters Lot 1 for the statutory period, using it in manner of true owner. A then sues to quiet title against both X and Y . . . What happens? A can only get title to X's lot because no entry to Y's lot 2
Example 5 – A received deed from X, not Z. A enters Lot 1. . . A sues to quiet title against X & Y -> no need against x since X conveyed. No win over Y because still no entry to Y's lot!
Example 6 – same facts as the 2 above but A occupies both lots . . . A gets both
2) Prescriptive Easement
Use by express or implied permission, no matter how long continued, cannot ripen into a prescriptive easement;
1. limited use of someone else’s land (phone, cable, electric, water companies have an easement across your land to lay and maintain pipes, lines, etc.)
2. generally is for a right of way
3. same elements present for AP also there for easements
B. Differences between AP and PE
1. AP is to own the land
I. possessory interest
II. exclusive possession
2. Prescriptive easement is to use the land
I. non-possessory interest
II. non-exclusive possession