- method of acquiring title to property by
- possession for a statutory period under certain conditions
Elements of AP
Open & Notorious
Continuous & Uninterrupted
NCGS: Statutory Element
Hostility Element- Define, Rules
- Act of dominion and use as if you are the true
- owner; possession under a “claim of right”
(1) Majority Rule—Objective Standard—State of Mind is Irrelevant/Look at actions—North Carolina
- ii) Permission/Consent
- by TO kills hostility… unless the welcomed invite is extended in hostility
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
Open and Notorious Define, Rules
- 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.
Continuous and Uninterrupted
- 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
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
(2) 21 years Þcolor of title
Against the Individual (company=individual)
- (1) 20 yearsÞ claim of
- (2) 7 yearsÞ color of
- Think also:-Tacking
- -LE and Remainders
Tacking. Define, what are the elements and general rules
- 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.
- (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.)
Privity define... who has it?
(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)
When is Tacking NOT permitted?
- (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
What is COT?
- A written instrument purported
- to convey, but fails to convey title
What are the advantages to COT?
COT Not required in most American Jurisdictions but has advantages:
i) Shorter Statute of Limitations—
ii) Opportunity to argue constructive possession
Define CP. What are the elements?
- gain title for entire land described on colorable instrument, even
- if not in actual possession of, if in actual possession of some.
(1) Color of Title
(2) Single Parcel; Single Owner (land)
- (3) No actual possession by another (especially
(4) Adverse Possessor has actual possession of some property
What's the important exception to CP?
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.
What is the rule for AP against the State?
Against the Gov't?
Gov't against Individual?
- 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
What's the run for tacking in terms of time periods to be met by subsequent possessors?
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.
What's the general rule for AP and subsequent transfers of land?
- 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.
What's the rule for AP against a remainder?
- 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.
What's the POLICY for AP and remainder
- Protects the TO (Remainder) who was unable to
- enforce interest until LE died.
Does disabilities apply to COT or AP?
Both; COT and AP
NC Disabilities include:
- (c) Incompetence—person
- adjudicated incompetent
Disabilities by other jurisdictions may include: prison and military—but not NC
What's the rule for disability and tacking?
- 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
General rule for disability and time action accrues:
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
2 approaches for disabilities:
What is NC's?
- (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
—SOL ceases during disability and starts after disability is removed
Types of disabilities:
Which do NC recognize?
—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