TRIAL BY CHECKLIST: ADVERSE POSSESSION

July 12, 2010 § 11 Comments

A practice tip about trial factors is here.

Section 15-1-13, MCA, sets out a six-part test that must be applied to determine whether adverse possession has occurred. 

In order for possession to be adverse, it must be:

  1. Under claim of ownership.  The possessing party must have acted with respect to the land as if he or she owned it. Jordan v. Peters, 986 So.2d 1018, 1022 (Miss. App. 2008); 
  2. Actual or hostile.  Actual possession is effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses. Blankenship v. Payton, 605 So.2d 817, 819-820 (Miss. 1992); 
  3. Open, notorious and visible.  In order for possession to be open, notorious and visible, “An adverse possessor must unfurl his flag on the land and keep it flying so that the owner may see … that an enemy has invaded his domains, and planted the standard of conquest.” Sturdivant v. Todd, 956 So.2d 977, 982 (Miss. App. 2007);
  4. Continuous and uninterrupted for a period of ten years.   Possession may be tacked on to the possession of predecessors in title. Jordan, at 1023;
  5. Exclusive.  The law requires that the person possessing the property in question must intend to possess the land over all others and to the exclusion of all others. Sturdivant, at 992; and
  6. Peaceful.  The adverse possession must be peaceful and unchallenged by the title owner. See, Sturdivant, at 987.

The claim of adverse possession must be established by clear and convincing evidence. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss. 1992).

The adverse possession statute was enacted by the legislature to address the serious problems caused by landowners who ignore claims or encroachments over long periods of time. Clanton v. Hathorn, 600 So.2d 963, 966 (Miss. 1992).

There are various cases interpreting the adverse possession factors.  The cases cited here are only a basic introduction.

 

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