66 CBJ 303. A Primer on Adverse Possession.

• Author: By EDWARD G. MASCOLO (fn*)

Connecticut Bar Journal

Volume 66.

66 CBJ 303.

A Primer on Adverse Possession

303A Primer on Adverse PossessionBy EDWARD G. MASCOLO (fn*)I. Doctrine and Purpose

The doctrine of adverse possession is a creature of legislation, and was not recognized at common law. (fn1) It is primarily an application of the defense of the statute of limitations, (fn2) and rests on a public policy that aims at the repose of conditions which the particular party litigants have suffered to remain unquestioned for a period of sufficient duration or length to indicate their acquiescence therein. (fn3) Hence, statutes sanctioning adverse possession are statutes of repose, and act to quiet title to land. In this way, insecurity of title to realty is lessened, and the growth and prosperity of this nation will not be unduly retarded. (fn4)

Moreover, such laws are a continuous notice to owners of real estate that if they allow others to occupy their land for the requisite period in a manner that satisfies the statutory criteria for adverse possession and that is hostile to the owner's interests, they will be deemed to have acquiesced in the occupant's claim of right to such possession, "and to have abandoned all opposition thereto." (fn5)

The doctrine of adverse possession reflects the desire of the law to settle land titles through a relatively prompt termination of property disputes, and to protect long-established interests and positions. (fn6) Consistent with this predicate is the recognition that a claimant's adverse possession begins with the owner's disseisin, or ouster from possession. (fn7) In other words, the statutory period begins to run at the time of entry upon the land claimed. (fn8) And, it will continue, if uninterrupted, against the owner of the land, or his successors, or his heirs, in title, when they gain the

304right of entry. (fn9) Thus, the statute of limitations will not begin to run until there is some act of possession by the claimant that is so open, hostile, and notorious as to constitute, in law, notice to the owner. (fn10)

An "adverse possession" is defined as a possession by which the legal or rightful owner is disseised and ousted of the land so possessed. It is, in short, a possession that is hostile to the title of another. "Disseisin," in turn, is accomplished when a person enters and takes possession of land as his own. Such an entry is characterized as unwarrantable, thereby putting the true owner out of his seisin. (fn11)

The essential elements of an adverse possession under Connecticut law are that the legal owner shall have been ousted of his possession and kept out uninterruptedly for the statutorily required (fn12) period of fifteen years under a claim of right by an open, visible, and exclusive possession by the claimant without a license from or the consent of the owner. Such a possession may not be established by inference, but only by clear and positive proof, with the burden of persuasion on the claimant. Ultimately, the question of whether possession is adverse is one of fact for the trier. (fn13)

This does not mean, however, that the proof establishing the claim of adverse possession be based entirely on direct evidence, as distinguished from circumstantial evidence and the logical and reasonable inferences to be drawn therefrom. Accordingly,

305inferences may be properly used in adverse possession proceedings to support a finding of adverse possession by clear and positive proof. (fn14)

Among the factors that may be considered in assessing the existence of adverse possession are (1) the purchase in good faith of land and the receiving of a deed of title thereto; (2) the survey of such land by the purported owner-possessor; (3) the payment of taxes on the property by such person; and (4) attempts by the claimant to exclude others, such as trespassers, and to otherwise attend to the land. (fn15) As these factors clearly imply, the mere uninterrupted possession of land, without the other essentials of adverse possession, is not sufficient to divest the owner of his title to the property. (fn16)

Although adverse possession is one of the modes of acquiring lawful title to land, it is not a favored one. (fn17) For example, presumptions will not be indulged in by courts to establish a claim of title by adverse possession. (fn18) To the contrary, in proceedings invoking a claim of title by adverse possession, every presumption runs in favor of the bolder of legal title, and none against him. (fn19) Thus, the law presumes that possession of land by an adverse claimant is in subordination to the legal interests of the owner of record. (fn20) Furthermore, an adverse claimant cannot acquire legal title by estoppel. (fn21) In short, therefore, the "doctrine of adverse possession " 'is to be taken strictly. (fn22)

Consistent with this approach that favors the interests of the rightful owner, there is a presumption that the use of land by one who has the title of record thereto is the exercise of his right to enjoy it. Moreover, such use, if in the exercise of the right of ownership, will be deemed to have interrupted the continuity of adverse possession by a hostile claimant. (fn23)

In sum, there is no balancing of the equities in adverse

306possession proceedings, (fn24) and proof of the constituent elements of adverse possession must be clear and positive. (fn25) This standard is satisfied by evidence sufficient to justify a reasonable belief that " 'the facts asserted are highly probably true [or] that the probability that they are true is substantially greater than the probability that they are false...." " (fn26) And, it is this standard which the adverse claimant must satisfy in order to overcome the prima facie case made out by the record title holder upon merely establishing his record title. (fn27)

2. ELEMENTS OF ADVERSE POSSESSION

   The several elements that comprise the doctrine of adverse possession serve to implement the rule disfavoring the acquisition of title by adverse possession by alerting, and thereby giving notice to, the lawful owner that his title is in danger, so that he may, within the requisite period of limitation, take action to protect his interests in the property. Thus, it is the nature of the hostile possession, and not the intent of the adverse claimant when he takes possession, that constitutes the warning deemed essential to warrant a protective response by the owner of record. (fn28)

   It should also be noted that treatment of the constituent elements of adverse possession dictates a certain redundancy, due to the overlapping concepts developed by the courts out of a concern for preserving the property interests of the holder of legal title.

   1. "A Claim of Right"

      The function of the element of "a claim of right" is to prove or establish an ouster and exclusive possession so openly and

      307notoriously hostile to the interests of the owner that he will have notice of the adverse claim. Thus, a user as of right is one in disregard of the rights of the legal owner." Put another way, an intention to claim ownership will be made manifest where one enters upon another's land and " 'uses it openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner.' " (fn30)

      A deed is sufficient to establish "a claim of right" under the doctrine of adverse possession. Thus, the extent of possession, under a claim of right by deed, will be determined by the description of the property contained in the title document, provided the disseisor has exercised some dominion over a portion of the land. (fn31)

      If one holds property under the mistaken belief that it is within his deed, and exercises physical dominion over the disputed area, this will be sufficient to satisfy the adverse or hostile character of such possession. The reasons for this are several: (1) the physical evidence of possession should itself alert the true owner that an adverse claim is being made, at which point he has the statutory period within which to end the problem; (2) this approach, which emphasizes the physical evidence of possession, is compatible with the requirement of a claim of right; and (3) since the actual boundaries of the disputed area do not lie within the instrument of title, thus giving rise to the mistake, the only way that the disseisor can hold is by showing actual dominion over the disputed area, which is the basis for the claim of title. (fn32)

      In other words, the intent of the disseisor to claim the land actually occupied overrides the less immediately effective intent to hold in conformity with the title deed. Thus, the intention, and not the mistake, determines the character of the possession. Hence, the fact that the possessor would not have claimed the property as his own had he known that the land was not included in his deed is immaterial to a determination of an adverse or hostile holding. (fn33) Ultimately, therefore, while the disseisor may

      308mistakenly rely upon his deed, it is his claim to the land actually occupied that is crucial to a determination of an adverse holding, and must be distinguished from an actual claim of title by deed. (fn34)

      Connecticut has adopted this position, reasoning that a mistaken belief, entertained by one who enters upon land and continues in possession thereof, that he is in fact its lawful owner, will not defeat a claim of adverse possession, because the very act of entering and taking land as one's own is deemed to be an assertion of one's own title...