Also known as: adverse possession · hostile possession · adverse possessor · hostile possessor · adverse poss. · hostile poss.
Written by attorneys — see sources below.
The requirement in adverse possession that the claimant's use of land occur without the true owner's permission and inconsistent with the owner's legal rights. Under the majority objective view this element is satisfied whenever the use proceeds without consent. Some jurisdictions add a good-faith or bad-faith overlay to the same requirement.
Hakeem Harris entered a neighbor's vacant lot believing it was part of his own parcel and began maintaining a drainage ditch across it. The lot was already burdened by a recorded covenant requiring contribution to a shared road. After the statutory period, Harris's hostile use ripened into title, and the covenant burden automatically attached to his new ownership.
Harper Hill and her predecessors planted crops and built a shed on a strip they thought belonged to their farm because of an old survey stake. The true owner never gave permission. The good-faith mistaken belief satisfied the hostile element and allowed tacking of successive periods to meet the statutory requirement.
Hana Huang occupied a parcel continuously and exclusively for the statutory period under a claim of right with no permission from the record owner. When the period expired, title transferred to Huang by operation of law without any deed from the prior owner.
Hugo Hart began adversely possessing a benefited parcel but had not yet acquired title. An affirmative covenant required maintenance contributions from possessors of the benefited land. The covenant benefit did not run to Hart until he satisfied the additional conditions in the applicable section governing adverse possessors.
Hilda Hernandez purchased paintings that had been stolen years earlier. The prior owner sued for replevin after the limitations period. The purchaser's open possession without permission from the true owner satisfied the hostile element and barred the owner's claim.
Georgia O'Keeffe, a renowned artist, had three paintings stolen from An American Place gallery in New York in March 1946. The gallery was operated by her husband Alfred Stieglitz. The paintings subject to this action are "Seaweed" and "Cliffs," with a third painting "Fragments" also missing. O'Keeffe did not report the theft to the police or advertise the loss, though she discussed it with associates. Stieglitz died in the summer of 1946. In 1947 O'Keeffe retained Doris Bry to help settle the estate. Bry urged reporting the loss, but O'Keeffe declined. In 1972, O'Keeffe authorized Bry to report the theft to the Art Dealers Association of America, Inc., which maintains a registry of stolen paintings. In September 1975, O'Keeffe learned that the paintings were in the Andrew Crispo Gallery in New York on consignment from Bernard Danenberg Galleries. On February 11, 1976, O'Keeffe discovered that Ulrich A. Frank had sold the paintings to Barry Snyder for $35,000. She demanded their return, but Snyder refused. O'Keeffe filed her complaint for replevin in March 1976 against Snyder, who impleaded Frank as a third-party defendant. The trial court granted summary judgment to Snyder on the ground that the action was barred by the six-year statute of limitations. The Appellate Division reversed and entered judgment for O'Keeffe. The Supreme Court of New Jersey granted certification to consider the issues. Frank traces his possession of the paintings to his father, Dr. Frank, who died in 1968, claiming to have seen them in his father's apartment as early as 1941-1943. Snyder purchased the paintings from Frank in 1975. There are factual disputes regarding the circumstances of the paintings' disappearance and acquisition.
View caseHope Howard's predecessor took possession of an abandoned railroad corridor under a claim of right and used it openly for farming. The United States later asserted an interest. The predecessor's hostile and continuous use for the statutory period transferred title by adverse possession.
In 1908 the Laramie, Hahn's Peak and Pacific Railroad obtained a 200-foot-wide right of way across public lands in Wyoming under the General Railroad Right-of-Way Act of 1875. The railroad completed construction of its line in 1911. The line later passed through several owners and was used primarily to transport timber and cattle. In 1976 the United States issued a land patent conveying an 83-acre parcel in Fox Park, Wyoming, to Melvin and Lulu Brandt. The patent conveyed to the Brandts fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever." The patent stated that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific Railway Company, its successors or assigns." The right of way crossed approximately ten acres of the patented parcel. In 1996 the Wyoming and Colorado Railroad notified the Surface Transportation Board of its intent to abandon the right of way. After removing the tracks and ties and obtaining Board approval, the railroad completed abandonment in 2004. In 2006 the United States filed suit seeking a judicial declaration of abandonment and an order quieting title to the right of way in the Government. The complaint named the owners of 31 parcels crossed by the abandoned right of way, including Marvin Brandt who held the Fox Park parcel through a family trust. Brandt contested the claim and filed a counterclaim asserting that the right of way was a mere easement extinguished by abandonment. The district court granted summary judgment to the United States. The Court of Appeals for the Tenth Circuit affirmed. The Supreme Court granted certiorari.
View caseThe majority view requires only that the use occur without the true owner's permission and be inconsistent with the owner's rights. Permission from the owner defeats the element. No showing of bad faith or intent to oust is needed.
Yes. When successive possessors use land under a good-faith belief that it is their own because of a mistaken boundary, the hostile element is met and tacking is permitted.
Yes. An appurtenant burden or benefit of a servitude generally runs to an adverse possessor who acquires title, unless the servitude terms provide otherwise.
…were stolen from a New York art gallery in 1946. Snyder asserted he was a purchaser for value of the paintings, he had title by adverse possession, and O'Keeffe's action was barred by the expiration of the six-year period of limitations provided by N.J.S.A. 2A:14-1 pertaining to an action in replevin. Snyder impleaded third party…