ADVERSE POSSESSION ESSAY OUTLINE FIRST Definition [definition] Adverse Possession permits an uninvited intruder who fulfills certain

n statutory and common law requirements to acquire legal title to the land and to divest completely the record titleholders rights.

Before the adverse possessors title is perfected his possession is wrongful as to the record owner. o However, they have superior right to everyone else BUT the true owner.

SECOND - Statutory Requirements ELEMENTS: (TEACH CO(S)) 1. Taxes (Only in CA) 2. Exclusivity 3. Actual possession 4. Claim of right a. Majority Rule (Objective Test) bad faith / dont care. b. Minority Rule (Subjective Test) - good faith 5. Hostility 6. Continuity a. Abandonment, Tacking, Tolling 7. Openness and notoriety 8. SOL (Statute of Limitations) If all the elements are met, then the adverse possessor is given TITLE to the land! NOTE (Adverse Use / Prescriptive easement):

There can also be adverse use. o Requires same elements as adverse possession o HOWEVER, User gets a non-possessory interest in the land. (only use; not title)

THIRD DETAIL ON ELEMENTS ELEMENTS (TEACH CO(S)) A. Taxes (only California). 1. In CA, The adverse possessor must pay property taxes for the statutory period. B. Exclusivity 1. The person claiming adverse possession must exclusively possess the land; and in that sense, exclude others (eject other trespassers, etc) a. E.g., in ITT Rayonier, the possessor (who moored his houseboat next to the land in Q) failed to meet the exclusivity requirement b/c he allowed other houseboats to moor up against the land. C. Actual Possession 1. The person must be acting as the rightful owner would, and have dominion and control over the land. 2. NOTE: They dont have to always be physically on the property, but must show control over the property. a. Acts done to exhibit this control can be: paying bills, mowing the lawn, repair/improve the property, or doing activities which use the land in an economically productive manner. D. Claim of Right 1. The claimant (adverse possessor) must treat the land as his own (just as the actual owner would treat it) as against the world throughout the statutory period. 2 Tests: i) Objective Test (majority rule). Bad faith claim of right test a. Allows those who KNOW they are trespassing to take by AP if they meet all of the requirements. b. Intent to dispossess (or not dispossess) another is irrelevant.
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c. ITT Rayonier v. Bell nature of possession will be determined on basis of the manner in which one treats the land. Subjective belief is irrelevant. d. POLCIY: i. Courts dont want to ask about state of mind. ii. They are punishing the land owner who doesnt eject trespassers in a timely fashion, and iii. Rewarding those who makes most beneficial use of the parcel. ii) Subjective Test (minority rule). Good faith claim of right test a. Adverse Possessor must demonstrate that they truly believed (state of mind) he owned the property b. POLICY: These JRDs DONT WANT TO REWARD land pirates or land squatters. (so they are only willing to allow those who take land in good faith) c. PROBLEM: The problem with the test is that the Court must look into the state of mind of the person (and everyone is going to say they had the land in good faith duh) d. Halpern entering without honest belief is trespassing and cannot ripen into title Hostility 1. Possessor possesses the property without consent or permission of the rightful owner a. Thus, if one has the rightful owners consent to possess the property, there is no hostility 2. Possessor must take action that is inconsistent with the owners property rights. (Measured by obj. evid). Continuity 1. All of the elements must be done continuously for the duration of the SOL. a. SOL may vary by State, and what the property is used for. (i.e. land for tree logging = 10yr SOL (so trees can grow). Residential area, continuous = being on the property daily / weekly ) 2. Continuous presence and dominion on property. Continuous possession d/n mean that the possessor must occupy the property every day throughout the statutory period; it requires only the degree of occupancy and use that the average owner would make of the property. Cts also consider the claimants other acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location. a. E.g., in Howard v. Kunto, continuity of possession of a summer beach home was not destroyed, where claimant only occupied the home during the summers. b. E.g., in Ray v. Beacon., claimants actual summertime use, coupled with their repeated acts of repelling trespassers, improving, posting, padlocking and securing of the property in their absence throughout the statutory period, demonstrated continuous dominion and control over the property. 3. Abandonment. a. If the claimant abandons the property, her possession is deemed to end. SOL starts over. 4. Tacking. a. Pro-Adverse Possesor (trying to help people adversely possessing to MEET the SOL). b. Allowing SOL to continue running b/t successors (if land passes, the SOL doesnt stop/start over. It keeps running), generally - as long as there is privity - possession is passed from one to another by deed to convey title, by descent, by devise, or by written/oral K. c. Ex: Howard v. Kunto 5. Tolling a. Stopping of the SOL from running against the record owner b/c of certain disabilities (such as being under the age of majority, serving in the armed forces, insanity, or imprisonment) b. Pro-Record Owner doctrine c. Ex: Ray v. Beacon Open and Notorious 1. The claimants acts of possession must be open and notorious. This means that her actions must be so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim. a. POLICY: People cant just creep around land secretly, and then claim adverse possession. The owner must have notice somehow that an adverse possessor is on the land. b. E.g., in Marengo Cave, claimant does not meet the open and notorious requirement, where she possessed a cave that ran underneath owners land. SOL (Statute of Limitations) 1. Must meet the States SOL before claiming title through adverse possession. Gives true owner time to eject.

FOURTH How much land do they get / What do they get? If someone meets all of the elements for adverse possession, the question becomes: How much land do they get? This depends on if the adverse possessor had Color of Title to the land. [definition] Having Color of title is: holding onto document that purports to convey title, but for some legal technicality fails, e.g., missing a required clause in document. Therefore, the person is actually an adverse possessor. RULE OF LAW: A. Enters with Color of Title. An adverse possessor who enters under color of title(a written document or instrument), may acquire adverse possession to the entire tract described in his document, even though he may have only actually possessed part of the property described. 1. (ex. Title says 100 acre ranch, but actual property was only supp. to be small house on the ranch) B. Absent Color of Title. Absent color of title (they have nothing in writing showing them to be the owner), an adverse possessor obtains title ONLY to that property actually possess by him. 1. (ex. 100 acre ranch, you possess only the home you get only the home, not entire plot of land) Some Jurisdictions: In some jrds, when a person enters possession under color of title, no further claim of right and hostility is required.

FIFTH - POLICY

I. AGAINST
A. Encourages trespassing and wrongdoing (by rewarding pirates and squatters) B. Prospective purchaser who does diligent record search cannot know if another has ripened titled and divested original owner 1. Unless possessor owner has perfected title. 2. Undermines goal and purpose of recording statutes. (When you go to buy land, you look at the title to see when it was last transferred. You wont know if someone has taken adverse possession b/c this isnt in the title. The way to cure this is to conduct an on-site survey & ask questions of all who seem to be in possession of the land.)

II. FOR
A. Protect those who knowingly appropriate the land of others and those who honestly believed property was theirs. 1. 2 Types of adverse possessors: a. Those who knowingly appropriate the land of others (they know the land is not theirs, but squat on it anyway, hoping that they dont get ejected and will be granted AP) b. Those who honestly believe the property was theirs. (When there is a mistaken belief that a person owns the property, but they dont EX: the deed doesnt have all the elements to be enforceable, like fraud signature, deed describing the wrong lot by mistake, etc) B. Protects one who innocently and mistakenly possesses the land of another for such a long period that a justifiable reliance on the existing state of affairs can be presumed. C. Promote certainty in land titled, nullifies conveyancing errors, and settle boundary disputes 1. Title to land should not be in doubt. 2. sometimes people dont adverse possess an entire parcel, just part. (i.e. putting up a fence a few feet on a neighbors property) D. Protects third parties who detrimentally rely on their belief that the adverse possessor is the true owner of the land E. Encourages beneficial use of land not being used by record owner (as opposed to having it abandoned). Cases: -

Tioga Coal Halpern v. Lacy ITT v. Bell Marengo Cave Howard v. Kunto Ray v. Beacon
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