PROPERTY – SECTION 2084 – Room 200

Nashville School of Law - Cooper Term – 2019-2020

Scott W. Fielding ([email protected])

SHERRARD
ROE
VOIGT
HARBISON
For, in the end, it is impossible to have a great life unless it is a
meaningful life. And it is very difficult to have a meaningful life without
meaningful work.

Perhaps, then, you might gain that rare tranquility that comes from
knowing that you have had a hand in creating something of intrinsic
excellence that makes a contribution.

Indeed, you might even gain that deepest of all satisfaction: knowing that
your short time here on this earth has been well spent, and that it
mattered.

Jim Collins, Good to Great.

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•
Adverse
What is adverse possession?
Possession
• -- is a legal principle that allows for the obtaining legal title to a piece of property by
trespass in property for a period equal to the statute of limitations for actions to eject the
trespasser. There are a number of elements that must be met to prove a claim for adverse
possession
• -- adverse possession can lead to legal title of the land, and it can also lead to
easement (prescriptive easement).
• -- Authors state on page 73 “the running of the statute of limitations not only bars an
action by the erstwhile owner but also vests a new title, created by operation of law, in the
adverse possessor. Once acquired the new title relates back to the date of the event that
started the statute of limitations running, and the law acts as though the adverse possessor
were the owner from that date.”
• Adverse Possession is a means of removing clouds on title, cleaning up title errors.
It protects “justified expectations.”

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 Adverse Possession
Examples –

** Summer Home example

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 Adverse Possession
1. Policy
 avoiding stale claims
 Quiet Title/Correct Title Errors (example on bottom of page 73)
 Protects parties justified expectations

2. Concise Statement of the Rule – The possessor must show (i) an

actual entry giving exclusive possession that is (ii) open and
notorious, (iii) adverse and under a claim of right, and (iv)
continuous, (v) for the statutory period.

** Courts apply a checklist approach. Must meet each of the elements

to establish adverse possession.

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 Adverse Possession
Legal Requirements
A. Entry that is Actual and Exclusive.

(i) Actual possession gives true owner notice of the trespass.

(ii) Actual possession is also intended to give true owner notice of the extent of the trespass. As a general
rule the adverse possessor will gain title only to the land she actually occupies. (but see color of title)
(iii) Exclusive Possession – means trespasser is not sharing with the true owner or the public at large.

This may be shown by enclosing the property by a fence and treating it as one’s own. Krosmico v. Pettit, 968
P.2d 345 (Okla. 1998). But see Hovendick v. Ruby, 10 P.3d 1119 (Wyo. 2000) (“fence of convenience” designed to
contain or keep out animals gives rise to a presumption of permissive use while a boundary fence gives rise to a
presumption of adverse possession). In the absence of a fence, one must demonstrate actual possession by
engaging in significant activities on the land, such as building on the land and/or living or conducting a business
there. Other actions that are often sufficient to show actual possession are farming, clearing the land, and
planting shrubs. Harris v. Lynch, 940 S.W.2d 42 (Mo. Ct. App. 1997). The touchstone is proof the possessor
treated the land as an “average owner” would. Jarvis v. Gillespie, 587 A.2d 981, 985 (Vt. 1991).

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Legal Requirements
Adverse Possession
B. Open and Notorious Possession
(i) Possession is open and notorious when it is the possession that a usual owner would make of the land.
(ii) The adverse possessor’s occupation must be sufficiently apparent to put true owner on notice that a trespass is occurring.
(iii) The type of acts required to establish “open and notorious” will vary based on type and location of land. Totality of acts
must give picture of person claiming dominion.
1. farmland – fencing, cultivating, and erecting a building usually would be enough.

• Courts generally agree that the possessory acts must be sufficiently visible and obvious to put a reasonable owner on notice that
her property is being occupied by a non-owner. Lawrence v. Town of Concord, 788 N.E.2d 546, 551-552 (Mass. 2003); Grappo v.
Blanks, 400 S.E.2d 168 (Va. 1991). The adverse possessor need not demonstrate that the “true owner” (the formal title holder)
observed or knew about the adverse possessor’s use of the property; rather, the true owner is “charged with seeing what
reasonable inspection would disclose.” William B. Stoebuck & Dale A. Whitman, The Law of Property §11.7, at 856 (3d ed. 2000).
Accord, Lawrence v. Town of Concord, 788 N.E.2d at 552 (adverse possession available even when record owner did not know it
owned the property in question).

• Enclosing land by a fence or a wall, as in Brown v. Gobble, is universally recognized as sufficiently open and notorious. Smith v.
Tippett, 569 A.2d 1186 (D.C. 1990). Other acts deemed sufficient include building a structure, Smith v. Hayden, supra (garage
located on neighboring property); v. Sanders, 676 P.2d 431 (Wash. 1984); and planting and harvesting crops, Cheek v.
Wainwriclearing the land, laying down a driveway, mowing grass, and using the strip for parking, storage, garbage removal, and
picnicking

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 Adverse Possession
Legal Requirements – cont.
C. Continuous Possession – must be continuous throughout the statutory period (possession must only
be the kind of occupancy that a true owner would use – so in some circumstances, seasonal use
would satisfy the “continuous” requirement (summer cabin)).

(i) Intermittent periods of occupancy not sufficient (but again only kind of occupancy that customary
owner would use is required).
Example – Intermittent grazing of cattle probably OK if that is typical
Examples on page 75 - Ewing v. Burnet 36 US 1837 (adverse possession of an unimproved lot
used principally for digging sand and gravel; adverse possession established when claimant
paid taxes on lot, from time to time dug sand and gravel, permitted others to do so and stop
others who didn’t have permission).
Pettis v. Lozier, 349 N.W.2d 372 (occasional use of land for variety of purposes throughout
statutory period not sufficient for adverse possession (kept geese and livestock, put some crates
up as sheds for animals, planted trees, did vegetable gardening, dumped trash and cars,
property signage etc]

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 Adverse Possession
Legal Requirements – cont.
C. Continuous Possession … cont.

(ii) Abandonment by adverse possessor (leaves with no intention to return) before statute has run,
the statute stops, a new entry is required and whole process begins anew

(iii) Tacking Permitted – adverse possession does not need to be continuous possession by the same
party, ordinarily you can add time period of the adverse possession of prior party (but generally
there must be privity of estate to tack).
(a) privity of estate - satisfied if subsequent possessor takes by descent, devise, or by deed
purporting to convey title. (Tacking not permitted where one adverse claimant
ousts a preceding adverse claimant, or where one adverse claimant abandons and
then a new adverse claimant goes into possession).
(b) formalities on transfer – even an oral transfer of possession is sufficient to satisfy the
privity requirement.

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 Adverse
Legal Requirements – cont.
Possession
D. Hostile (or adverse) – the claimant’s possession must be hostile (adverse) to the Owner. Claimant does not
have true owner’s permission to be on the property.

(i) Majority view won’t look at the state of mind, only whether the adverse possessor used someone else’s land
without permission. The state of mind of the adverse possessor is irrelevant (in most states,
including TN). By the large majority view, it does not matter whether the possessor believes she
is on her own land, knows she is trespassing on someone else’s land, or has no idea who owns
the land.

(ii) Minority, bad faith or intentional trespasser view – look at intent of the possessor, and mistaken possession
does not constitute hostility. These courts (Maine v. Preble case) hold if possessor mistakenly believed
property was their property, and would not have adversely possessed if she had known otherwise, than does
not have the requisite adversity. No adverse possession. Need to show Intentional dispossession.

(iii) Good faith – few cases go other direction and require adverse possessor to be on neighbor’s property in good
faith belief that it was there property.

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 Adverse
Legal Requirements – cont.
Possession

Joseph W. Singer, Property (5th Edition):

“In many cases, however, the title holder has said nothing at all about whether the use is permissive; she has
simply allowed it to occur without interference. The courts uniformly hold that possession of another’s property
without either explicit objection or explicit permission is presumptively nonpermissive. Thus to defeat the
presumption that the use is nonpermissive, the title holder must come up with evidence to show that she granted
permission, in either written or oral form. “

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 Adverse Possession
Legal Requirements – cont.
E. Running of Statute of Limitations (15 – 20 years in most
jurisdictions; in Tennessee it is 20 years to get legal title).

 Statute begins to run when claimant goes adversely into

possession of true owner’s land. Entry on to the land (entry that
creates the action for trespass).
 Suit by owner to eject does not stop the running of the statute,
the owner must take case to judgment. But if suit filed before
running of statute, and owner obtains judgment after the statute
runs, the judgment will relate back to the time that the
complaint was filed.

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COLOR OF TITLE

• Refers to a claim of possession founded on a written instrument

(deed or will) or a judgment or decree that is defective or invalid. For
example, the Grantor of the deed did not own the property the deed
purported to convey; the deed is defective for some reason –
unsigned, or owner who signed deed was incompetent when signed.
• The benefit of adverse possession under color of title is that actual
possession of only a portion of property described in defective deed or
will is constructive possession of all that such deed or will purports
to convey. So the activities that are relied upon to establish adverse
possession reach not all the part of the premises occupied but all of
the premises described in the defective writing.
• In some states, gaining by color of title also shortens the statute of
limitations period.

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COLOR OF TITLE

• Land already in the constructive possession of another possessor

under color of title cannot be included. When the land involved
described in the colorable instrument is occupied in part by the real
owner (or by a prior adverse possessor), the adverse possession is
confined to the area actually possessed by the claimant.
• Example - See Problem 1 page 88
• Constructive possession does not occur when the property that is
constructively possessed is owned separately from the property that
is actually possessed.
• Example – See Problem 2 page 89

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TACKING

Rule – You can tack if there is privity of estate. “Privity of

estate in this context means that a possessor voluntarily
transferred to a subsequent possessor either an estate in land
or physical possession. Where the transfer is not voluntary, as
in the case of someone ousting the prior possessor, there is no
privity of estate.”

Discuss Problems Page 101

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DISABILITIES

The statute of limitations does not begin to run for adverse possession
if the true owner was under some disability to sue WHEN THE
CAUSE OF ACTION FIRST ACCRUED. (disabilities are
determined by statute but are typically minority, imprisonment,
insanity)

No tacking of disabilities – only a disability existing at the time the

action first accrued are considered. Thus disabilities of successor
owners or subsequent additional disabilities of the current owner have
no effect on the statute.

Discuss Problems Page 102

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 Tenn. Code Ann. § 28-2-103 (2016)
28-2-103. Seven-year period runs from time right accrued -- Extent of possession
a) No person or anyone claiming under such person shall have any action, either at law
or in equity, for the recovery of any lands, tenements or hereditaments, but within
seven (7) years after the right of action accrued.
b) No possession of lands, tenements or hereditaments shall be deemed to extend beyond
the actual possession of an adverse holder until the muniment of title, if any, under
which such adverse holder claims such lands, tenements or hereditaments is duly
recorded in the county in which the lands are located.
• Tenn. Code Ann. § 28-2-103 bars the right of the title owner to recover property that has been adversely held for more than
seven years. Teeples v. Key, 500 S.W.2d 452, 456 (Tenn. Ct. App. 1973). The statute does not convey title, but may be used
defensively by the adverse holder. It is "a defensive statute and protects the adverse holder in possession to the
extent and upon the terms set forth in the statute." Moore, 42 Tenn. App. At 564, 304 S.W.2d at 662; see also Lemm, 955
S.W.2d at 73 n.1 (stating that the statute provides a valid defense but does not entitle the adverse holder to a decree granting
him title).

• Michael v. Jakes, No. M1999-02257-COA-R3-CV, 2002 Tenn. App. LEXIS 489, 2002 WL 1484448 at *13 (Tenn. Ct. App. July
12, 2002).

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 Adverse Poss. – Michael v. Jakes
i. Michael only owned property for 11 years. What about tacking prior owners
interests? Is privity of estate required?
 “The possession may be continuously in one person, or there may be several successive
possessions. In the case of successive possessions they must be connected without any
hiatus, but there need be no privity of contract or other legal privity between
the successive occupants,….” [DISCUSS/APPEARS TO BE AN OPEN
QUESTION IN TENNESSEE.]
 THOMPSON ON REAL PROPERTY, supra, § 87.14, at 598. THOMPSON cites Derryberry v. Ledford, 506 S.W.2d 152 (Tenn.
Ct. App. 1973), for the proposition that "Tacking by successive grantees of adjoining land was permitted though land claimed
by adverse possession was not included in the deed." Derryberry involved successive conveyances of a farm and the belief that a
later disputed plot was part of the farm, although it was not covered in the deeds. The Court found that the each of the part ies
in the chain of title and succession of conveyances had the right to tack regardless of the fact the plot was omitted from th e
description in the deed to the farm. The relevant question appears to be whether "the adverse possessor intended to and
actually did turn over possession of undescribed land together with that described in the deed." THOMPSON ON REAL
PROPERTY, supra, § 87.14, at 178.

 In either case, court will allow tacking in this case. (note that prior owners must also meet elements of AP)

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 Adverse Poss. – Michael v. Jakes
ii. What about adverse under claim of right/intent? [ie. Hostility/Intent]
 “Mistake as to the property line does not make the possession other than adverse … In
the absence of positive proof or unambiguous circumstances showing that a possession is
or is not adverse, the exclusive possession and use of the land are presumed to be
adverse, it is not necessary to show an intention to hold and claim the property
in spite of the fact that the legal title may be in another. The possession of one
who holds property as his own is adverse to all the world, although he never
heard of an adverse claim. The possession, use, and dominion may be as absolute and
exclusive where there is no dispute as to boundary, and hence the occupant has no actual
intention to claim adversely to anyone, as where such an intention exists. . . . The fact
that the occupant might, if he knew that he was on his neighbor's land, recognize and
accede to the latter's title, does not affect the adverse character of his possession, where,
because there has never been any question or doubt as to the location of the boundary, he
possesses and uses the property as his own, and does not recognize or accede to any
superior title.”

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 Adverse Poss. – Michael v. Jakes
iii. What about open and notorious?
 “The possession must be of such a character as to leave no doubt of claim of ownership
by adverse possession and to give notice to the public of the possession and the claim …
The possessors must have openly and adversely claimed ownership of the land and
utilized it as their own.”
 1981 prior owner (Loftin) purchased property and there was a gravel driveway to house.
Prior owner testified that he thought gravel driveway was part of property and in 1983
paved it.
 When Mr. Michael purchased property (in 1987) he assumed driveway and land adjacent
to it were part of deed .. and since purchasing property he used it has exclusively his
own.
 Neighbors (including one of 37 years) testified that gravel driveway has been there since
1978 and he observed Mr. Michael using strip next to driveway and parking several cars
in strip

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 Adverse Poss. – Michael v. Jakes
iii. What about open and notorious – cont. ?
 While enclosing by fence helps, don’t have to do that. Has defendant exerted dominion
and control to suggest someone claiming it.
 Holding on AP - With regard to the land under the driveway, we find that Mr. Michael
has presented undisputed evidence that he and his predecessors exercised such dominion
over that property and acted toward it in such a way as to unmistakably indicate they
were claiming ownership of it. Grading, paving, maintaining and using the entire
driveway, including that portion on Mr. Jakes's land, demonstrate exercise of ownership,
not just use of the land under the driveway for access. The driveway was constructed,
improved, and maintained to provide access to the Michael Lot, conduct consistent with
ownership. We disagree with Mr. Jakes's position that Mr. Michael and his predecessors
only used, but did not possess, the land under the driveway. We also disagree with his
position that, as a matter of law, the type of possession exercised did not sufficiently
denote claim of ownership so as to establish adverse possession

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 Defensive Statute – Michael v. Jakes
iv. What about defensive statute?
 TCA 28-2-103 (quoted above)

 “A party adversely possessing land for the requisite seven years obtains a possessory interest in the real
property so possessed. "This possessory right, or defensive title as it is sometimes called, continues as
long as the actual possession is maintained. The possessory right is complete by reason of the statute
and is unrelated to title. Thus, if Mr. Michael has adversely held the disputed property since his
purchase of the Michael Lot, he has a possessory interest in that property, contrary to the trial
court's ruling that he had no interest”

 “Because the statute creates a possessory right, it gives the adverse holder the right to sue for trespass or for
an injunction to prevent repossession. It creates a defensive right in the adverse possessor against anyone,
including the title owner, seeking to dispossess the adverse possessor. After the required seven years of
adverse possession, "until the possession [of the adverse holder] . . . is surrendered, the right to possession of
said lot is not remitted to the holder of the legal title.”

 Same elements to establish AP under the statute as under “common law.”

 unless muniment (color of title), any possessory interest that he has by virtue of Tenn. Code Ann. § 28-2-103 applies only
to the area he actually adversely possessed for the requisite seven years.

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 Defensive Statute – Michael v. Jakes
iv. What about defensive statute – cont. ..?
 Holding - . “For the same reasons that led us to determine that Mr. Michael and his predecessors exercised ownership
over the land under the driveway, we find that Mr. Michael adversely possessed the land under his driveway for the requisite
seven year period and is entitled to the protection of Tenn. Code Ann. § 28-2-103.

With regard to the land adjacent to but not covered by the driveway, the Northeast Section, there is a dispute of material fa ct
about the character of the possession by Mr. Michael. He asserts he used it as part of his yard. Whether his use of that stri p of
land was sufficiently exclusive, continuous, open and notorious to constitute adverse possession must be determined after tri al.
There are facts in dispute which are relevant to whether Mr. Michael exercised dominion and control over that property or
whether his conduct toward that strip of land provided sufficient indication that he was claiming it and treating it as his o wn. In
addition, the extent of the property adversely possessed, if any, must be determined after trial. “

Michael v. Jakes, 2002 Tenn. App. LEXIS 489, *45, 2002 WL 1484448 (Tenn. Ct. App. July 12, 2002)

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