For those who doubted...

At Oliver's 1st b-day party yesterday, my cousin Danny had just finished presenting a story that concluded with a question regarding "squatter law". I being the law student was then asked about my knowledge of this area. While not an expert I said that I was aware of a situation where a person illegally on land can take possession of the land once a certain amount of time has passed and certain requirements are met. Needless to say, most those who were listening were skeptical and questioned what I had been doing for past year and a half because I was obviously wasting my time and money. I believe the gist of the comments were centered on the idea that I had no idea what i was talking about.

The following is from the Property outline. The concept that I was talking about is called Adverse Possession. In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period of time.

Adverse Possession

• Statute of limitations that bar the owner of property from suing to recover possession (ejectment suits) from one who has wrongfully entered the property. Once passed the adverse possessor get title to land.
o Serves to clear titles to land
• Majority courts require proof by clear and convincing evidence not just a preponderance
• Requirements
o 1. Actually possess the property
o 2. Open, notorious and visible
o 3. Exclusive possession
o 4. Possession must be hostile. i.e. without owner’s consent
o 5. Continuous for at least the length of statutory period

• Actual Possession
o Test: must physically occupy property in some manner
o Must put the land to ordinary use such that a true owner would make of it
o Color of Title (constructive possession)
• Used to expand area that adverse possessor claims
On who enters property under color of title—written instrument that is defective for some reason (forged deed, incorrectly signed deed)—will gain title to the entire area described in the instrument even if only actually possesses a portion
• If true owner occupies a portion of land described in defective title and adverse possessor actually occupies another portion but has color of title, true owner’s actual possession trumps color of title for that portion that true owner is actually occupying.

• Open, notorious and visible
o Test: had true owner inspected, would he have been put on notice that property is being occupied by a non-owner?
o Community belief helps to establish this

• Exclusive Possession
o Use is not shared with true owner, land is being used as a true owner would use it

• Hostile
o Possession must be without the owner’s consent
o Presumption that occupation is non-permissive—look at true owner’s acts or state of mind
o Three tests depending on jurisdiction
• objective test
acts alone are sufficient as long as there is no permission. No need to examine AP’s state of mind. Based on possession. Majority rule
claim of right—possession must be hostile, i.e. without owners consent and AP act toward the land as average owner might
• good faith subjective test
AP believes he has right to land. What was AP’s intent?
PP—rewards innocent possessors—those who mistakenly occupy
• bad faith subjective test (thief mentality)
AP knows or suspects that he does not have right to own land. Intent to steal.
PP against—rewards wrongdoers

• Continuous control for statutory period
o AP must be continuous throughout the entire statutory period
• If owner re-enters the property to regain possession this will be an interruption of adverse possession and adverse possessor must start again from scratch
o Must occupy property as true owner for statutory period. Common law = 20 years but every state has own. Ranges from 5 (CA) to 40 years.
o Type of property is important.
• Is the AP using the property in the way the true owner would use it?

Just for the record, I got a B+ in the class.

Today is the 3 year anniversary of Pudge's death.