Adverse Possession, Elements of

Possession must be:

1. Continuous for the statutory period.

a) No physical interruption or court action seeking possession

b) at common law the statutory period is twenty years

2. Open & notorious

a) the possession is visible so as to give the owner reasonable notice that the possessor is claiming ownership

b) this is so that the owner can defend his rights

3. Hostile and adverse

a) the possession must be under a claim of right [possessor actually believes that he owns the property], or possessor acknowledges he has no right to enter the property, but he has the intent to claim it for his own.

i. a minority of courts don’t allow a knowingly wrongful possessor to gain title, not wanting to reward a thief.

4. Exclusive

a) Can’t share possession with owner or public in general

5.  If all four elements are satisfied, the original owner can no longer exclude the adverse possessor who holds new title.

6.  Possession itself can be indicated by facts like fencing, living on the property, acts of possession as well as paying taxes (taxes alone is insufficient) or any other use a true owner would make of the property.

ECHO: Exclusive, Continuous, Hostile, Open

Subleases Masquerading As Assignments

The operative phrase is “entire interest” and whether or not this refers to the time left on the lease or the percent acreage. You can have a legal assignment of 100% of the acreage, but there must not be any time remaining on the lease term which will revert back to the assignor, otherwise what you’ve really got on your hands is a sublease of 100% of the parcel.

What is an assignment of a lease?

An assignment occurs when a tenant transfers away the entire remainder of his lease, in terms of duration.

Real property rights can be assigned just as any other contractual right. However, special duties and liabilities attach to transfers of lease interests. With an assignment, the assignor transfers the complete remainder of the lease term to the assignee. The assignor must not retain any sort of reversionary interest in the right to possess. If any portion of the original lease term is reserved by a tenant assignor, then the act is not an assignment, but instead is a sublease. Read more