adverse possessor can’t tack on time to previous adverse possessor 2. If the original adverse possessor comes back and throws him out, most courts hold he can join together his first period w/ the second period of possession d. Policy behind continuous: It would not be fair for the true owner if the adverse possessor could gain his land from being there intermittently. Possession has to be continuous to put the owner on notice that someone is taking and using the land in a continuous fashion. Also that way the owner can’t say he didn’t see or didn’t know his land was being used. 2. Tacking 6
a. Definition: One who has adversely possessed property for less than the statutory period may not yet have title to it, but he has a possessory interest in it, and that interest is capable of being transferred to another (orally, written deed, bequest, or inheritance) where privity exists b. Privity: 2 parties must have a direct relationship (usually either familial or economically) w/ the transferor In cases of an oral gift, deed, bequest, or passage through inheritance, requirement of privity almost always met c. You MUST have privity in order to allow tacking D. Length of time required 1. Statutory period a. Basic length of time required varies from state to state, but as a general trend, statutes of limitation are longer in the East than in the West (i.e. WA=7 years, East coast up to 20 years) -reason is probably land boundaries etc. have been in place longer in the East coast than in the W, and the land is more abundant and sparsely populated in the W than in the E b. Disabilities: If the true owner has a disability (minor, insane, incarcerated) in nearly all states he is given extra time to bring an action of ejectment, and the adverse possession period is lengthened, BUT disability must exist at the time the adverse possession began 2. Successors in Interest: If after adverse possession has begun, owner conveys his interest to another, the time of possession against the first owner is tacked onto the time of the subsequent owner E. Rights of Adverse Possessors 1. Before the end of Statutory Period a. Trespass: Adverse Possessor can bring an action of trespass against one who enters the land because trespass is an action that vindicates possessory status not ownership b. Relations w/ owner: Adverse possessor doesn’t have any rights against the true owner of the land 2. Rights after the statutory period a. Possessor gains good title b. Owner loses right to profits: After the statutory period, owner loses right to an ejectment action and a right to recover a reasonable rental value for the period of adverse possession c. Doctrine of “Relation Back” is said to apply so that the adverse possessor’s title dates back to the first time he ever took possession 7
CHART FOR ADVERSE POSSESSION REQUIREMENTS HOSTILE OPEN & NOTORIOUS EXCLUSIVE CONTINUOUS STATUTES Definition -Without the owner’s permission -Acting as an owner would -Evident to other people: neighborhood, owner - If owner reasonably can be expected to know of activity
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- Fall '08
- Possession, Real property law, Future interest