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Adverse Possession

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Andrea Martin

on 3 May 2016

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Transcript of Adverse Possession

Adverse Possession
1. Actual Possession
3. Exclusive Possession
4. Hostile or Adverse
What constitutes possession?
building a house, farming, fencing, cutting timber (remember accession).

"Color of Title"- claiming ownership through a written document (i.e. a Deed) a type of constructive possession.
2. Open and Notorious
the adverse possessor's use of the property is so visible and apparent it gives notice to the true owner that someone may be asserting claim to the land.
Means that the adverse possessor holds the land to the exclusion of the true owner and anyone else.
The adverse possessor occupies the property without the true owner's permission.
The adverse possessor is subject to an ejectment proceeding by the true owner.

An adverse possessor may eject other trespassers and adverse possessors even before the statute of limitations runs, as long as the adverse possessor entered the property first.
The adverse possessor may sell or give his interest to another person. That purchaser or donee succeeds to the adverse possessor's attributes, including the time first possessor occupied the property. This adding of time the first possessor used the property to the time the second possessor used the property is called "Tacking".
Adverse possessor must be in possession the entire statutorily prescribed period. (this does not mean 24/7).
5. Continuous
The relationship necessary to allow tacking is called "Privity"

"Privity" occurs by contract of sale, gift, will or other inheritance.
Marengo Cave v. Ross
Campbell v. Hipawai Corp.
A.P. and Oil and Gas?
Adverse Possession is a process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of its true or rightful owner.
Production is key.
#1. Paul lives in a house on Lot 1, which he believes he owns. However, Olga actually owns Lot 1. Everyone in the neighborhood knows that Paul lives on Lot 1, but Olga resides elsewhere and does not know. Paul could own the property after the statutory period has run, because Olga should have checked her land. Paul has no duty to inform her of his possession.

#2. Paul's house encroaches onto Olga's property, but Olga does not realize it. Paul can acquire title to the area that is being encroached on, if the statutory period has run and Olga has taken no action.
"Tacking" Example: Paul possessed property from 1990 to 1996 and then gave Rachel a deed to it. Rachel then possesses the property from 1996 to 2001. Under a ten year statute of limitations, Rachel prevails against true owner, because Rachel can "tack" (add) to Paul's six years.

"Privity" Example: Paul possessed property for six years and then died. Rachel, his heir, then possessed the property for five years. The two periods may be tacked together because there is "privity" between the parties.
What is a "Statute of Limitations"?:
It is the number of years an adverse possessor must use the property.

Varies widely among each state (OK is 15 yrs)

Color of Title: A Deed or other conveying instrument which grants a property to a A.P.
A.P. claims color of title when he claims ownership under some written instrument. (Most common are County Tax Deeds)

A.P. actually physically occupies the property.
Full transcript