Property Question Forum

[Microturd]

X and Y own two adjacent pieces of property. X owns piece 1 and Y owns piece 2. They have both owned their properties for 5 years. Both X and Y are unaware of it, but the driveway of X's piece 1 encroaches on to Y's piece 2. X then sells piece 1 to Z. After 6 years Z gets the property surveyed and discovers the encroachments and claims the encroachments onto Y's piece 2 as his by adverse possession or alternatively that he has a prescriptive easement. Assuming a 10 year statutory period, what arguments can Y make to avoid losing title to these parts of his property?

[EarlCat]

There's not adverse possession because the possession was not exclusive. X and Z did not keep Y from using the property.

Not sure about the easement. Perhaps Y could argue that he gave implied permission, and thus the use is not hostile. (He could say that about adverse possession too.)

[coolestguyever]

There's not adverse possession because the possession was not exclusive. X and Z did not keep Y from using the property.

Exclusivity is not based on whether X and Z kept Y from using the disputed parcel, but rather on whether X and Z possessed the parcel. Unless Y or some third party possessed the parcel (used the driveway, shoveled snow off of it, etc.) , X and Z had exclusive possession.

The rules for adverse possession vary by jurisdiction, so the good arguments vary by jurisdiction too. For instance, the type of "adversity" required could prove determinative: under the objective standard and the good faith standard, the possession is adverse, but under the bad faith standard, the possession is not adverse. In addition to arguments based on the law, the facts could matter a lot. If X or Z did not use the driveway for a while, that would make their possession not continuous.

For the easement, showing implied permission would be very difficult since Y did not know that the parcel was his property. Again, the rules would be jurisdiction dependent. Even if there is an easement, Y would not lose title; that is an essential difference between adverse possession and prescriptive easements.

[EarlCat]

There's not adverse possession because the possession was not exclusive. X and Z did not keep Y from using the property.

Exclusivity is not based on whether X and Z kept Y from using the disputed parcel, but rather on whether X and Z possessed the parcel. Unless Y or some third party possessed the parcel (used the driveway, shoveled snow off of it, etc.) , X and Z had exclusive possession.

That's what I meant (but didn't express properly). The possession was open an notorious, actual, and continuous (presumably since the road was never removed). The only major elements left to contest are exclusivity and hostility. So the argument would have to be (and, granted, additional facts are necessary to make these) either that the possession was not exclusive (e.g. that Y used it too) or that Y gave permission at some point.

Another possibility I just thought of is the disability exception. If before the possession, Y was a minor, was insane, or was in prison, that will toll the statute.

Also if X was the government, there would be no adverse possession.

The rules for adverse possession vary by jurisdiction, so the good arguments vary by jurisdiction too. For instance, the type of "adversity" required could prove determinative: under the objective standard and the good faith standard, the possession is adverse, but under the bad faith standard, the possession is not adverse.

Good call.

There's an appellate case in Texas where a fence encroached on another person's land. Behind the fence, the would-be adverse possessors planted trees and continuously grazed cattle. (The property was sold during the statutory period, but use was continuous.) The court held that adverse possession was not proven because the encroaching party failed to establish that the purpose of the fence erected by the prior owner was to delineate the boundary between the two properties. Perhaps the argument could be made that there is no evidence the purpose of the driveway was to indicate the boundary line of the property. Basically the fence was to keep the cows in, not to keep the true owner out. (If this is a 1L question, I'd want to base this on a case in the book.) That case makes it look more like a prescriptive easement.

Even if there is an easement, Y would not lose title; that is an essential difference between adverse possession and prescriptive easements.

Title would still be encumbered, which I supposed could be considered a partial loss.

[Microturd]

would the fact that X and Y are husband and wife (still married, but property in their individual names) change things at all? Assuming they lived together on Piece 1, there would be no exclusive argument I would think... but does the fact that they were husband and wife speak to the fact that the possession was not adverse or hostile?

Im trying to make an argument that X was not adversely possessing part of Y's property for the first 5 years so therefore Z cannot tack and now adversely possess from Y -- does that make sense?

[pleasetryagain]

My property knowledge left my head after the exam but doesn't the possession have to be "open and notorious and under a claim of right" to satisfy adverse possession? As in, Y would have to know that X was encroaching and X would have to be knowingly encroaching. Since neither knew, they don't satisfy adverse possession? Way off?

[EarlCat]

My property knowledge left my head after the exam but doesn't the possession have to be "open and notorious and under a claim of right" to satisfy adverse possession? As in, Y would have to know that X was encroaching and X would have to be knowingly encroaching. Since neither knew, they don't satisfy adverse possession? Way off?

No. Open and notorious does not mean known or knowingly. It just means you're not trying to hide it. You can accidentally adversely possess (i.e. really think the land is yours), and the owner does not have to know about it.

[EarlCat]

would the fact that X and Y are husband and wife (still married, but property in their individual names) change things at all? Assuming they lived together on Piece 1, there would be no exclusive argument I would think... but does the fact that they were husband and wife speak to the fact that the possession was not adverse or hostile?

Im trying to make an argument that X was not adversely possessing part of Y's property for the first 5 years so therefore Z cannot tack and now adversely possess from Y -- does that make sense?

Oh jeeze. Regarding the effect of marriage alone, I have no idea. Maybe it depends on whether the state has community property laws and when the parcels were acquired.

If they both lived together on either property I think adverse possession fails. If Y lived on X's property, then Y is there by permission and cannot adversely posses or take an easement by prescription. If X lived on Y's property, we can assume X used the encroaching driveway, and thus Y's possession of it was not exclusive. But in that second scenario, there still may be an easement.

[pleasetryagain]

My property knowledge left my head after the exam but doesn't the possession have to be "open and notorious and under a claim of right" to satisfy adverse possession? As in, Y would have to know that X was encroaching and X would have to be knowingly encroaching. Since neither knew, they don't satisfy adverse possession? Way off?

No. Open and notorious does not mean known or knowingly. It just means you're not trying to hide it. You can accidentally adversely possess (i.e. really think the land is yours), and the owner does not have to know about it.

ahh.. you are correct.. glad this wasn't on my exam.