What are the Elements of Adverse Possession? (AOACP)
Actual Entry and Exclusive Possession that is:
Open and notorious; (general and Lutz test)
Objective Standard: Would a reasonably attentive owner have noticed the adverse possessor’s possession?
Adverse (w/o owner’s consent) and under a claim of right (or claim of title);
Don’t confuse this with “entry under color of title,” which is a forged deed.
Continuous for the Statute of Limitations (SOL) period for Ejectment, at least in a manner appropriate to the circumstances;
The owner must have actual knowledge of the encroachment in order for the SOL for ejectment to commence and this is a question of fact.
Payment of property taxes in MOST states.
What are the 3 Views in Adverse Possession?
Must be claiming title to the property, and then Objective, Good Faith, or Bad Faith (or “Aggressive Trespasser”) view is applied.
“Good Faith”- You believe the land truly is yours
“Bad Faith” & “Aggressive Trespasser”- You are aware that the land is not yours.
What is the Typical SOL?
10 years after the cause thereof accused BUT if a person entitled to bring such, at the time of cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned, such person, after the expiration of ten (10) years from the time the cause of action accrues, may bring such action within five (5) years after such disability is removed.
Who is a successor in interest to the true owner?
People who acquire their legal interest in the property from the true owner.
A successor in interest takes the property burdened by the True Owner’s sins (e.g., sleeping on his or her rights) and benefitted by the True Owner’s advantages (e.g., tolling of the SOL due to a disability).
Can AP’s tack their periods of possession?
Yes, BUT ONLY if they were in “privity” with each other.
What are examples of Disability?
Minority Age, Insanity, Imprisonment.
CANNOT BE TACKED
Interest of the True Owner at Time of AP’s Entry?
The AP can only acquire the interest of the True Owner of the property at the time that the adverse possessor entered the property.
If the adverse possessor is related to the true owner can the possession be adverse?
NO! Presumption is made that possession is permissive not adverse.
What is the Discovery Rule?
The discovery rule looks at the conduct of the true owner, not the possessor. It looks at when the Plaintiff first knew or reasonably should have known, through the exercise of due diligence, of his or her cause of action, including the identity of the possessor of the chattel.
What are the three views on Replevin (or Return of the Item)?
At the moment the item disappears; This is the most harsh to the true owner.
When True Owner actually knows who Took Item and Demands Return; This is most generous to the true owner.
When True Owner Knew/Should have Known, through Exercise of Due Diligence, the Identity of Possessor.
What is the 24 Hour Rule?
If an adverse possessor is ejected from the property and returns to the property within 24 hours then they were not actually ejected! (BUT, in most states their period of being there will restart)
If this is a family member it is not enough to just tell them to leave you must physically eject them.
