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adverse possession {how attorneys make money}

By
Real Estate Agent with Perry Wellington Realty

This happened to me after a purchase with neighbors that lived across the stream . We owned a property that had a stream on it. After getting it surveyed we started building waters falls on the 800 foot stream. the neighbors immediately started calling the fish and stream commission. which in return, i had about a dozen visits from township and state officials on my property uninvited.. while working on this issue i told the neighbors to stay off of my property located on the other side of the stream, and if they returned i would call the police. Two weeks later i had received a letter from there attorney stating that they have lived on there property and maintained my side of the stream during there 15 years ownership. Its strange how building water falls in a stream , and having neighbors that ""hate change"" cause a battle in court over something so silly!! i would like to here other experiences on this subject..    thanks   . Brian K Bender

 

 

Acquisition by Adverse Possession

 

Adverse possession occurs when the right to claim ownership has run under the SOL

Ownership then runs from the time that the adverse possession began

Prescription – like adverse possession but it is a right to use (easement), not ownership

Adverse possession requires

  1. Entry giving exclusive possession

Triggers the running of the SOL – must claim exclusive possession

  1. Open and notorious

Gives the true owner opportunity to exercise rights of possession

SOL is tolled if the party is not aware that he has been defrauded

  1. Adverse and under a claim of right

Your entry must challenge the ownership of the other person

  1. Continuous for the statutory period

Each new entry creates a new cause of action against you

Continuous means occupied during the normal time occupied

 

Van Valkenburgh v. Lutz p. 129

Lutz uses the land for a very long period of time

In the first case he gets an easement to cross it and admits that it belongs to Van Valkenburgh

Does this mean that it is not hostile and thus not adverse possession

Is the property already his by adverse possession – just saying it isn’t is meaningless

Court gives the land to Van Valkenburgh – Lutz knew it wasn’t his, no claim of title

 

Statute of Frauds – transfer of ownership in land requires a writing

Color of Title – someone who takes possession pursuant to rights purportedly granted in deed

Ex. deed from someone who does not own the land

Usually adverse possession does not require color of title but it may be relevant

Common law - §38 p. 133 – under color of title and possessing part of the land gives you all of it

§40 – if not under color of title and you possess only part you only get that part

 

Mannillo v. Gorski p. 147

Steps go 15 inches over the property line, it was never noticed until the SOL had already run

Intent is irrelevant – not necessary to have adverse possession

Can’t presume that they have knowledge – must be actual knowledge that it crosses property line

Court rules that if they didn’t know and it is extremely costly to change they have option of purchasing a conveyance at market price

If small and unintentional encroachment then it must be moved or conveyed

Must be obviously noticeable to be adverse possession

 

Howard v. Kunto p. 153

Lots that people live on and the lots on their deeds are all off by one

Summer homes – only need to be continually occupied as is appropriate for the type of land

If deeds are legitimate then you count the time of the previous owner as well

Can tack time on to possession if there is privity

Successors to interest of previous possession

 

Exception to SOL for those with disabilities, minors, and those imprisoned

There is no way for them to bring suit against an adverse possessor

It is only relevant if it is the original owner, not the heir

Only conditions that existed at time cause of action arose are relevant

 

Owner of the remainder has no ability to oust an adverse possessor but to put pressure on the owner of the life estate

 

O’Keeffe v. Snyder p. 163

O’Keeffe is painter and original owner, claims it was stolen in 1946

Court rules that SOL never ran, no open and notorious possession

But then you can never have ownership settled as that is how paintings work

Different than real estate where it cannot be concealed

Court says that as long as there is an effort to locate the item and assert ownership the SOL is tolled

This type of system is not adopted everywhere in the US

 

UCC §2-403 – purchaser of goods acquires only such rights as the seller has

Person with voidable title can transfer good title to a good faith purchaser for value

Voidable title if through fraud or purchased in arms length transaction (not gift)

 

North American Graves Protection and Repatriation Act of 1990

Overrides the state adverse possession doctrine

Only can keep artifacts if they can show they rightfully obtained them.. 

Property-Kitch-Spring 2006 (fair)                      

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