Learning Outcomes
After reading this article, you will be able to identify the requirements for acquiring title by adverse possession, distinguish between permissive and hostile possession, apply the rules on exclusivity, continuity, and tacking, and recognize the effect of disabilities and covenants on adverse possession. You will be equipped to answer MBE questions on this topic with confidence.
MBE Syllabus
For MBE, you are required to understand the doctrine of adverse possession as a method of acquiring title to real property. This includes the statutory and common law requirements, the effect of disabilities, and the consequences for future interests. You should be able to:
- Identify the elements required for adverse possession (actual, open and notorious, exclusive, hostile, continuous).
- Apply the rules regarding tacking and privity.
- Recognize the effect of disabilities on the running of the statutory period.
- Distinguish between adverse possession against present and future interests.
- Understand the impact of covenants and government ownership on adverse possession.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is NOT a required element for adverse possession?
- Actual possession
- Open and notorious use
- Payment of property taxes (in all states)
- Hostile possession
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If an adverse possessor occupies land for 10 years, then sells her interest to another who occupies for 5 years, and the statutory period is 15 years, which of the following is true?
- The second possessor cannot claim title by adverse possession.
- The second possessor can claim title only if there is privity.
- The statutory period restarts with the second possessor.
- Tacking is never allowed.
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The statute of limitations for adverse possession will NOT begin to run against the true owner if:
- The owner is a minor at the time the adverse possession begins.
- The owner is declared insane after adverse possession begins.
- The owner is imprisoned at the time adverse possession begins.
- The owner is absent from the country when adverse possession begins.
Introduction
Adverse possession is a method by which a person who is not the legal owner of land may acquire valid title by possessing the property for a statutory period, provided certain conditions are met. This doctrine rewards those who make productive use of land and penalizes owners who neglect their property rights. Understanding the precise requirements and limitations is essential for MBE success.
Elements of Adverse Possession
To acquire title by adverse possession, the possessor must satisfy all of the following elements for the statutory period:
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Actual Possession: The possessor must physically occupy the land as an ordinary owner would, giving notice to the true owner.
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Open and Notorious: The possession must be visible and obvious so that a reasonable owner would be aware of the trespass.
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Exclusive: The possessor must not share possession with the true owner or the public.
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Hostile: The possession must be without the true owner's permission.
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Continuous: The possession must be uninterrupted for the entire statutory period.
Key Term: Adverse Possession The acquisition of title to real property by possessing it in a manner that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period.
Actual and Exclusive Possession
The possessor must physically use the land in a manner consistent with its nature (e.g., farming, building, or living on it). Exclusive possession means the possessor does not share control with the true owner or the general public.
Key Term: Exclusive Possession Possession that is not shared with the true owner or the public; the possessor acts as the sole owner.
Open and Notorious
The use must be visible and apparent, not secret or hidden. The true owner must have a reasonable opportunity to discover the adverse use.
Hostile Possession
Hostility means the possessor occupies the land without the owner's consent. The possessor's state of mind is generally irrelevant; it does not matter whether the possessor believes they own the land or knows they are trespassing.
Key Term: Hostile Possession Possession without the true owner's permission; does not require animosity or intent to trespass.
Continuous Possession and Tacking
Possession must be continuous for the entire statutory period, but does not require constant physical presence. Occasional or seasonal use may suffice if consistent with the property's character.
If successive possessors are in privity (e.g., by deed or will), their periods of possession may be combined ("tacked") to satisfy the statutory period.
Key Term: Tacking The addition of successive periods of adverse possession by different possessors in privity to meet the statutory period.
Disabilities
If the true owner is under a legal disability (minority, insanity, imprisonment) at the time adverse possession begins, the statute of limitations does not run until the disability is removed. Disabilities arising after adverse possession begins do not toll the period.
Key Term: Disability (Adverse Possession) A legal condition (minority, insanity, imprisonment) that prevents the statute of limitations from running against the true owner if present at the start of adverse possession.
Effect on Future Interests
Adverse possession runs against present possessory estates, not future interests. The statute does not begin to run against a remainderman or reversioner until their interest becomes possessory.
Effect of Covenants and Government Ownership
Adverse possession may extinguish private covenants if the possessor acts in violation of them for the statutory period. However, government-owned land cannot be acquired by adverse possession.
Worked Example 1.1
A enters onto B's land, builds a fence, and farms the land for 20 years. B lives in another state and never visits. The statutory period is 15 years. Can A acquire title by adverse possession?
Answer: Yes. A's possession is actual, open and notorious, exclusive, hostile, and continuous for more than the statutory period. A acquires title by adverse possession.
Worked Example 1.2
C occupies D's land for 8 years, then sells her interest to E, who occupies for 7 years. The statutory period is 15 years. Is E entitled to claim title by adverse possession?
Answer: Yes, if there is privity between C and E (e.g., by deed), E can tack C's 8 years to her own 7 years to meet the 15-year requirement.
Worked Example 1.3
F, a minor, owns land. G enters and possesses the land for 12 years while F is still a minor. The statutory period is 10 years. Can G acquire title by adverse possession?
Answer: No. Because F was a minor when G's possession began, the statute of limitations does not run until F reaches majority. G's 12 years do not count until F is no longer under disability.
Exam Warning
The statutory period for adverse possession varies by state and may require payment of property taxes. Always check the specific requirements in the fact pattern.
Revision Tip
Remember: Permission destroys hostility. If the true owner gave permission, adverse possession cannot be established.
Key Point Checklist
This article has covered the following key knowledge points:
- Adverse possession requires actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period.
- Hostility means possession without the owner's consent, regardless of possessor's intent.
- Tacking is allowed if successive possessors are in privity.
- Disabilities present at the start of adverse possession toll the statute of limitations.
- Adverse possession does not run against future interests until they become possessory.
- Government land cannot be acquired by adverse possession.
- Violation of covenants may be extinguished by adverse possession.
Key Terms and Concepts
- Adverse Possession
- Exclusive Possession
- Hostile Possession
- Tacking
- Disability (Adverse Possession)
