Tuesday, May 2, 2017

Adverse Possession Elements

Below is a good summary on the law of adverse possession. 

To establish title by adverse possession, each of the following six elements must be proven by clear and convincing evidence.  “For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.”  Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004)).  The claimant bears the burden of proving adverse possession by clear and convincing evidence.  Scott v. Anderson-Tully Co., 154 So. 3d 910, 916 (¶14) (Miss. Ct. App. 2015).  “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not
rise to the same level.”  Massey v. Lambert, 84 So. 3d 846, 848 (¶7) (Miss. Ct. App. 2012)
(citation omitted) (citing In re C.B., 547 So. 2d 1369, 1375 (Miss. 1990)). 

1. Under Claim of Ownership

 When determining whether an adverse possessor has staked a proper claim of ownership, the relevant inquiry is “whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.”  Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citing Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007)).  “Adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.”  Apperson, 950 So. 2d at 1117 (¶8).  As such, “the chancellor must look to the quality and not the quantity of the acts indicative of possession.”  Id.  “A party claiming land by adverse possession . . . enclos[ing] the piece of property with a fence is a factor to be considered in determining if adverse possession occurred.”  Buford v. Logue, 832 So. 2d 594, 602 (¶23) (Miss. Ct. App. 2002). 

2. Actual or Hostile

Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.”  Roberts, 118 So. 3d at 670 (¶10).  “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.”  Id. (citing Wicker v. Harvey, 937 So. 2d 983, 993-94 (¶34) (Miss. Ct. App. 2006)).  “[T]he adverse possessor . . . must present some proof that [his] occupation of the record owner’s property was hostile, and that the record owner—aware of the adverse possessor’s hostile occupation—took no action to prevent adverse possession.”  Double J Farmlands Inc. v. Paradise Baptist Church, 999 So. 2d 826, 829 (¶15) (Miss. 2008).  “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.”  Roberts, 118 So. 3d at 670 (¶10) (citing Apperson, 950 So. 2d at 1118 (¶12)). 

 3. Open, Notorious, and Visible

“In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible.”  Roberts, 118 So. 3d at 671  (¶13).  Therefore, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”  Id. (quoting Wicker, 937 So. 2d at 994 (¶35)).  “A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.”  Dean v. Slade, 63 So. 3d 1230, 1237 (¶28) (Miss. Ct. App. 2010).   

4. Continuous and Uninterrupted for a Period of Ten Years

Mississippi Code Annotated section 15-1-13 requires continuous and uninterrupted possession of a disputed property for at least ten years.  See Miss. Code Ann. § 15-1-13. “[O]ccasional use of someone else’s property without an enclosure does not pass the test of adverse possession.  Ellison v. Meek, 820 So. 2d 730, 736 (¶21) (Miss. Ct. App. 2002).  “Sporadic use of another’s property does not constitute open and notorious possession.”  Id.

5. Exclusive

 “Exclusive possession means that the possessor ‘evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.’”  Roberts, 118 So. 3d at 671 (¶15) (quoting Wicker, 937 So. 2d at 995 (¶40)).  “It does not mean that no one else can use the property.”  Id.  “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”  Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). 

6. Peaceful

“An adverse possessor’s use of a claimed property must be peaceful.”  Scott, 154 So. 3d at 915 (¶28); see also Miss. Code Ann. § 15-1-13.  This Court has held that “expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful.”  Roberts, 118 So. 3d at 671 (¶16).

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