Real Property: Adverse Possession

  • Adverse Possession – possession, for a statutory prescribed period of time, can, if certain elements are met ripen into title.
  • Elements (COAH) – for possession to ripen into title in must be:
    • Continuous: uninterrupted possession for a given statutory period (NY à 10 years)
    • Open and notorious: the type of possession that the usual owner would make under the circumstances
    • Actual: Entry cannot be symbolic.
    • Hostile: possessor does not have the owner’s consent to be there.
  • NOTE: Possessor’s subjective state of mind is irrelevant.
  • Tacking: 1 adverse possessor may take on to his time with the land his predecessor’s time, so long as there’s privity, satisfied by any non-hostile nexus, such as blood, contract, a deed or a will.
    • Tacking is not allowed when there’s ouster.
      • EX: O owned Blackacre in 1980 when A entered adversely. A was on her way to satisfying the elements of adverse possession when, in 1986, Mr. X ousted her. Mr. X stayed on the land through 2000. There’s a 20-year statute of limitations. In 2000, O owns Blackacre because ouster defeats privity, thus no tacking is allowed.
  • Disabilities: Statute of limitations will not run against a true owner who has a disability (insanity, infancy, imprisonment) at the inception of adverse possession.