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Whenever it appears that a person has encroached on another’s property, check to see whether the encroacher may have taken title by adverse possession. Adverse-possession questions are favorites of profs, in part because an adverse-possession issue can be well-hidden inside an essay fact pattern involving other topics.

Note: In the examples in this section, we assume a 20-year adverse-possession statute unless otherwise noted.

Adverse possession generally

Remember to list and discuss all the requisite elements even if they are obvious. In your analysis, discuss in greater detail the elements that are less clear. Also, note the state statutory period. If one isn’t mentioned, write that you’re assuming the occupation has occurred for the requisite length of time.

  • Hostility requirement:   Make sure the occupation is hostile. If the rightful owner assents to the occupation (e.g., by giving verbal permission to the occupier, or by accepting rent from the occupier, then this requirement has not been met).
  • Owner’s knowledge:   The rightful owner’s knowledge of the encroachment, coupled with his lack of response to it, will likely be viewed as assent.

Example:   The occupier, AP, tells the rightful owner, O, that AP knows he is encroaching and he will remove the encroachment if O so requests. O remains silent. O’s silence will be construed as permission. Therefore, AP is not holding with the required hostility, and his holding won’t count toward the statutory period.

  • Co-tenancy:   If the contest is between two co-tenants (call them A and B), and A claims to have taken sole title by adverse possession, look for clear actions indicating the ouster of B, the other cotenant. If there’s no ouster -no sign that A kept B from the premises -A won’t take B’s share by adverse possession.

Example:   A and B inherit Blackacre as co-tenants. A decides to live on the property; B continues to live far away. A pays all taxes and insurance, and makes all repairs on the property. A pays nothing to B for imputed rent. At the end of the statutory period, has A taken B’s one-half interest by adverse possession? No. If there is no evidence that A prevented B from using the premises and thus ousted her, the court will presume that B consented to the arrangement. Therefore, A won’t take B’s interest by adverse possession.

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