Word of the day
The statutory period does not run against any individual under a legal disability (insanity) or until the individual has a legal cause of action to oust the possessor. For example, an adverse possessor could acquire title against a life tenant but not against the remainderman, who has no right to possession until the prior life estate is terminated.
Persons who claim title to property by adverse possession do not have readily marketable title until they obtain and record a judicial decree “quieting” the title or obtain a quitclaim deed from the ousted owner. When all requirements have been met, the owner’s title is extinguished, and a new title is created in favor of the adverse possessor. The effective date of the new title, as far as the original owner is concerned, is the first adverse entry. Thus, suits by the former owner based on trespass, profits, or rents during the adverse period are barred.
Most states do not require the claimant to have paid taxes on the property for any certain period of time (although in some states, a claimant’s paying taxes may shorten the prescriptive period). However, a court might consider that failure to pay taxes is evidence that the claimant really did not claim ownership of the property.
The courts do not usually allow a claim of adverse possession if owner and claimant have a close family relationship, such as father and son or husband and wife, because in these cases, hostile claims are too difficult to prove. Cotenants normally cannot claim adverse possession against each other without an actual and clear ejectment of one cotenant by another.
Prescriptive rights in general are not usually favored by the law, insofar as they cause others to forfeit their rights. There is often a presumption that, when a person has entered into possession of another’s property, such possession was with the owner’s permission and consistent with the true owner’s title.
Generally, one cannot take title to state or federal lands by adverse possession. However, the federal Color of Title Act provides that a claimant who has met all four tests of adverse possession on public land may receive a patent to such land, provided that the land does not exceed 160 acres and that all taxes are paid. The United States, however, reserves the right to all coal and mineral rights to the property. In addition, title to Torrens-registered property usually cannot be taken by adverse possession.
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