first-year law review

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Nov. 13 Property: Adverse Possession

With a general idea of adverse possession, let’s examine some of the requirements more closely. First up is exclusive possession. In ITT Rayonier, the court held that use alone doesn’t constitute possession. The ultimate test of exclusivity is the exercise of dominion over the land in a manner consistent with actions a true owner would take. 

Next up is open and notorious. In Marengo Cave v. Ross, the court held that possession is open and notorious if its nature and character is such as is calculated to apprise the world that the land is occupied and who the occupant is. A visitor has to be able to see that the owner’s rights are being violated. For possession to be notorious, it has to be so conspicuous that it is generally known and talked of by the public. The statute of limitation doesn’t begin to run until the injured party discovers or should have discovered the facts constituting the injury and cause of action.


Finally, we consider continuous possession. There can be cases where, although I’ve only owned a parcel of land for, say, five years, I can tack on the previous owner’s time (or even multiple prior owners) to my own to meet the requirement for adverse possession. In Howard v. Kunto, there was a pretty convoluted problem with deeds being different from the place where the homes were located. The court held that where several successive purchasers received record title to tract A under the mistaken belief they were acquiring tract B, and there possession of tract B is transferred and occupied in a continuous manner by successive occupants, there is sufficient privity of estate to permit tacking and establish adverse possession.


Next time we’ll talk about written instruments if we’re lucky.


November 13, 2006 - Posted by | Property

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