1L AP: Property Basics

• method of acquiring title to property by
• possession for a statutory period under certain conditions

Hostile

Intent

Open & Notorious

Continuous & Uninterrupted

Exclusive

Actual

NCGS: Statutory Element

• Act of dominion and use as if you are the true
• owner; possession under a “claim of right”

• ii) Permission/Consent
• by TO kills hostility… unless the welcomed invite is extended in hostility

(1) Majority Rule—Objective Standard—State of Mind is Irrelevant/Look at actions—North Carolina

actions are critical; Once there is an entry against the true owner, she has a cause of action.

(2) Minority Rule—Subjective Standard—Look to intent of AP

(a) Good-Faith Jurisdiction/Standard—“I thought I owned it.” mistaken belief that it was his/her own

• (b) Larcenous Intent Jurisdiction/Standard—“I
• thought I did not own it and intended to take it.”
• knew the property belongs to someone else and claims it anyways

• The adverse possessor has visible and
• apparent possession of the land evident
• to the public.

(1) AP does not need to give actual notice to the TO,===constructive notice

ii) Encroachments- something built partially on the land of another…

• For a minor encroachment,
• the TO must have actual notice before statute of limitations start.

• Possessing the land that is consistent with the character and nature of the land, using the
• property as the true owner would under the circumstances

• No one can
• interfere with the adverse possessor’s dominion or control of the property,
• especially the true owner.

• (1) Does not mean sole exclusivity—just reasonable
• use.

Real, physical possession of the property

• (1) Must actually be there, either personal or object
• Building on or improving the property helps est.
• this element

Against the state:

• (1) 30 years Þ claim of
• right

(2) 21 years Þcolor of title


Against the Individual (company=individual)

• (1) 20 yearsÞ claim of
• right

• (2) 7 yearsÞ color of
• title

• Think also:
• -Tacking
• -LE and Remainders
• -Disabilities

• Successive adverse possessors add together period
• of possession to satisfy the statute of limitations. Possession must be continuous
• and in privity.

• (2) GR: Time runs against the true owner from the time when AP began, and so long as AP continues unbroken, it makes no difference who
• continues it.

• (a)
• Elements:

(i) Continuous

• (ii) Privity— Relationship between two parties having a legally recognized interest in the property. (Subsequent possessor
• voluntary takes by descent, by devise, or by deed purporting to convey title.)

(ii) Privity— Relationship between two parties having a legally recognized interest in the property. (Subsequent possessorvoluntary takes by descent, by devise, or by deed purporting to convey title.)



(a) Ways toestablish privity:

(i) Grantor/Grantee (Seller/Buyer)

(ii) Devisor/Devisee (Testate decedent/ beneficiary)

(iii) Ancestor/Heir (Intestate decedent/ heir)… determined by intestate succession act

• (iv) Any other kind of "agreement" (Kunto=reasonable connection between successive
• occupants of real property)

• (i) Force: Subsequent
• possessor forced or ousts a prior possessor OR

• 1. Depends on jurisdiction if AP must restart SOL
• when kicked off and returns to land

• (ii) Abandoned: Where one prior adverse possessor
• abandons; leaves with intent to relinquish claim

• A written instrument purported
• to convey, but fails to convey title

COT Not required in most American Jurisdictions but has advantages:

i) Shorter Statute of Limitations—

ii) Opportunity to argue constructive possession

• gain title for entire land described on colorable instrument, even
• if not in actual possession of, if in actual possession of some.

ii) Elements/Requirements

(1) Color of Title


(2) Single Parcel; Single Owner (land)

• (3) No actual possession by another (especially
• TO)

(4) Adverse Possessor has actual possession of some property

Constructive Possession cannot trump actual possession (by a true owner or other adverse possessor).

• (1) When the land described in the colorable
• instrument is occupied in part by the TO, the adverse possession is confined to the area actually possessed.

• (2) Land already in the constructive possession of
• another possessor under color of title cannot be included in constructive
• possession of another.

A) State—

• i) Regular
• adverse possession =30 years

• ii) Color of
• title =21 years

• B) No adverse
• possession against the federal government

• C) Adverse
• possession cannot be brought against the state for any public lands, such as
• parks, streams, etc…

• D) Private party
• can’t get gov’t property by AP but the gov’t can get property of a private
• individual via AP

Must use original time period of the prior possessor.

• IE: AP for 5 years. COT
• can’t take and only have 2 more years… need to do full 7 years.

• Once AP has begun... the SOL begins to run
• against the true owner and subsequent transfers of the land by the TO do not
• interrupt the AP.

• AP can only take what the TO has right to… but in a LE/Remainder situation, both parties
• have rights to land. Until AP is established against a remainder, AP is not
• official b/c doesn’t meet SOL against Remainder.

• (i) LE and
• Remainder is a separate interest in the same property, entitling first the life
• estate to the possession and then after his death the remainder.

• (ii) The remainder has an interest in the property but
• cannot come into possession until the life estate interest terminates (LE
• dies). Immediately then, the interest transfers to the Remainder and the
• Remainder can have possession. The AP must meet the SOL against the remainder
• starting that date. Thus SOL restarts against the Remainder.

• Protects the TO (Remainder) who was unable to
• enforce interest until LE died.

Both; COT and AP

(a) Minor

(b) Insanity

• (c) Incompetence—person
• adjudicated incompetent

Disabilities by other jurisdictions may include: prison and military—but not NC

• No tacking of disabilities: only a disability of
• the true owner existing at the time
• the cause of action arose is considered. Disabilities of successors or subsequent
• additional disability of the true owner have no effect on the statute

Disability must be present when action accrues.

• (a) If disability
• comes upon TO after the adverse
• possessor has entered his land.
• The regular statute of limitations applies

• (a) Additional
• Period of Time/Grace Period—once
• the disability is removed the TO has an additional period of time to bring a
• cause of action against the adverse possessor if the statute has expired or the
• time until the statute expires if shorter than the additional time period. The time the owner has to bring an
• action will be as long as the statute or longer, but it will never be
• shorter. This protects the TO.

(i) North Carolina= 3 years of grace period

(b) Tolling—SOL ceases during disability and starts after disability is removed

(a) Existing—exist when time of action accures

• (b) Coexisting Disability (2 at same time=last to be removed)—TO has two
• disabilities when the action accrues.
• The additional period of time does not start running until the 2nd disability is removed.

• (c) Supervening Disability (1+1=last removed)—TO
• has a disability when the action accrues.
• Before the first disability is removed, TO develops another
• disability. The additional period
• of time does not start until the last
• disability is removed.

• (d) Intervening Disability (gap btwn disabilities)—TO has a disability when
• the action accrues. The disability
• is removed. However, before TO can
• bring a cause of action, another disability comes on A. The original period of time
• stands. The additional period of
• time does not restart.

• *NC does NOT recognize intervening disabilities for additional period
• of time