Adverse Possession

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SwampRat88
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Adverse Possession

Postby SwampRat88 » Sat Dec 03, 2011 2:46 pm

Land owner has two adjacent properties, being leased to A and B.

Without land owner's consent, A begins to adversely possess a portion of B's land. B gives implied consent by erecting 4 posts around the adversely possessed land, but there is no permission from the title holder.

Assume all the other elements are met, including the SoL. Does A have a claim for adverse possession against the title holder, even though the leasee gave permission?

nonprofit-prophet
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Re: Adverse Possession

Postby nonprofit-prophet » Sat Dec 03, 2011 2:57 pm

Going totally off memory, I think in the context of renters, you can adversely possess against B, but not title holder. If successful, A would take B's interest, which is a lease and presumably has an end date. A has to leave when lease is up. Of course, if B's implied permission is sufficient to negate the "adverse/hostile" element, then A cannot acquire B's interest by adverse possession at all.

OnlyRkNRollButILkeIt
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Re: Adverse Possession

Postby OnlyRkNRollButILkeIt » Sat Dec 03, 2011 3:01 pm

nonprofit-prophet wrote:Going totally off memory, I think in the context of renters, you can adversely possess against B, but not title holder. If successful, A would take B's interest, which is a lease and presumably has an end date. A has to leave when lease is up. Of course, if B's implied permission is sufficient to negate the "adverse/hostile" element, then A cannot acquire B's interest by adverse possession at all.


I'm inclined to agree. Unless there was something explicitly stating that B's possessory interest was non-transferrable, I don't see the adverse/hostile element being met against the owner.

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AlexanderSupertramp
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Re: Adverse Possession

Postby AlexanderSupertramp » Sat Dec 03, 2011 3:20 pm

I can't see how the possession could be considered exclusive because the renter's possession is considered the landlord's. So, even if B did set up those posts, he was still there on that tract occupying the land.

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introversional
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Re: Adverse Possession

Postby introversional » Sat Dec 03, 2011 3:23 pm

OnlyRkNRollButILkeIt wrote:
nonprofit-prophet wrote:Going totally off memory, I think in the context of renters, you can adversely possess against B, but not title holder. If successful, A would take B's interest, which is a lease and presumably has an end date. A has to leave when lease is up. Of course, if B's implied permission is sufficient to negate the "adverse/hostile" element, then A cannot acquire B's interest by adverse possession at all.


I'm inclined to agree. Unless there was something explicitly stating that B's possessory interest was non-transferrable, I don't see the adverse/hostile element being met against the owner.


If A were successful, then B could potentially have a claim against the Landlord for partial actual eviction from someone claiming (via A/P) to have paramount title. B would complain to Landlord. The landlord would then say to A, "get off that portion of the land that isn't included as part of your lease or I'll sue your ass for trespass" which A would have to abide by because he did not successfully A/P anything from the Landlord.

A does not profit.

edit: R/C fail, my rant skipped over the part where you said B gave permission. That changes things a little, but this still wouldn't work against the landlord.
Last edited by introversional on Sat Dec 03, 2011 3:26 pm, edited 1 time in total.

nonprofit-prophet
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Re: Adverse Possession

Postby nonprofit-prophet » Sat Dec 03, 2011 3:25 pm

AlexanderSupertramp wrote:I can't see how the possession could be considered exclusive because the renter's possession is considered the landlord's. So, even if B did set up those posts, he was still there on that tract occupying the land.


well I know that if a land is subject to a future interest, you can only acquire the present interest from AP. You only get the land until the future interest becomes a present interest (at that point, the limitations clock starts running again, because it is a separate interest in land).

The lease may be a non-freehold estate, but it is still an interest in real property. So I figured the same rules applied to it as above. But of course for this to work, it would likely have to be a commercial lease where you see leases longer than a few years (to beat out the limitations period). But if you were to possess for the statutory period and satisfy all other elements, I believe you would acquire the renter's interest in the real property, similar to the scenario with land subject to present possessory and future interests.

just my 2 cents

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ph14
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Re: Adverse Possession

Postby ph14 » Sat Dec 03, 2011 3:29 pm

SwampRat88 wrote:Land owner has two adjacent properties, being leased to A and B.

Without land owner's consent, A begins to adversely possess a portion of B's land. B gives implied consent by erecting 4 posts around the adversely possessed land, but there is no permission from the title holder.

Assume all the other elements are met, including the SoL. Does A have a claim for adverse possession against the title holder, even though the leasee gave permission?


I don't think so. Isn't one of the AP requirements that the possessor has to possess the land as a true owner would so the true owner would know (or should know) about the adverse possession? I don't see how that would work if the landlord gave a tenant the right to occupy his property. The land owner would not be on notice that someone was adversely possessing it because his tenant is possessing it. Plus the use can't be permissive (although I see the argument that it wasn't permissive to the possessor, only to the tenant). So I think this would fail on at least a couple required elements.

Plus also the concept that you can't give more than what you have. So a tenant could assign his lease to another person, but couldn't give away title to land. I think if you extrapolate principle a bit it kills the adverse possession, but again the trouble i'm having with this is what element of AP all these arguments fall into.




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