A Threshhold Issue in Adverse Possession

April 3, 2014 § 4 Comments

You’ve read here before about the elements of adverse possession, every one of which must be proven by clear and convincing evidence before the person claiming title by adverse possession may prevail.

One of those elements is that the possession must be hostile. That is, it must not be with the assent of the title owner. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So.3d 846, 849 (¶ 11) (Miss. App. 2012). 

That is the principle that tripped up Tim Hoover in the claim of adverse possession he asserted against George and Nelta Callen. Tim’s brother, Mayo, had gotten permission to install some septic tank field lines on a portion of the Callens’ property 12-15 years before the litigation. He also had their permission to use the same property to pasture horses and store some vehicles. Mayo had asked to purchase the land for those purposes, but the Callens would not sell, instead agreeing to let Mayo use it. George Callen testified that Mayo told him that, if the filed lines ever caused George any trouble he would remove them.

Mayo died, and Tim moved onto the property. Problems arose with the field lines, and George approached Tim to inquire what he would do about it. Tim reacted angrily and ordered George off of his property. When the field lines remained unrepaired, George dug them up and laid them on Tim’s property. He also constructed a fence on the property line. Tim complained that the new fence “cut through” his yard.

Tim filed suit to remove cloud and confirm title. The chancellor ruled that Tim had failed to prove all of the elements of adverse possession, and Tim appealed.

In Hoover v. Callen, decided by the COA on March 25, 2014, the court affirmed. Justice Irving, for the court:

¶15. “To acquire property by adverse possession, a claimant must show that [his] possession of the property was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for a period of ten years.” Id. at (¶14) (citing Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005)). “The chancellor must find that the plaintiff[] proved each element of [his] claim by clear and convincing evidence.” Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶16) (Miss. 2004)). “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.” Id. at 670 (¶10) (citing Apperson v. White, 950 So. 2d 1113, 1118 (¶12) (Miss. Ct. App. 2007)).

The court went on to find that the evidence supported the chancellor’s conclusion that Mayo and Tim had used the land with permission, and that, as a result, Tim’s claim of adverse possession was defeated.

A plaintiff brought an adverse possession case in my court in which he had gained occupancy of the property via a lease in the early 1980’s. He paid only a few months of rent before stopping his payments entirely, due to inadequacy of the dwelling, he claimed. After a couple of years he moved a mobile home onto the property. The title owner never initiated an action to evict him, although he did send an emissary on one occasion to inquire about whether the plaintiff intended to pay rent. I ruled that the occupancy was permissive, and, therefore, there was no adverse possession. I dismissed the case, and the plaintiff appealed. His appeal was dismissed for failure to prosecute, so we will not be getting any guidance from the appellate courts on the facts in this particular case.

The questions posed by the case that I had are two-fold: (1) If the landlord does not take any action to oust the defaulting tenant for more than ten years, has the landlord waived his right to claim permissive use by the tenant; and (2) What notice or other action on the part of a tenant may overcome the permissive use defense and convert the use to a hostile one? I did not find any Mississippi authority on point.

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§ 4 Responses to A Threshhold Issue in Adverse Possession

  • Kim says:

    in an adverse possession case, does an adverse possessor have to provide a survey or proof of the property he has adversely possessed? Does testimony and exhibits alone suffice to show that he adversely possessed property and meet the elements?

    • Larry says:

      I am out of the office and away from my code and cases, so I can only say off the top of my had that I have heard adverse possession cases that did not include a survey in the proof. Of course, if the court finds that the claim is proven, a survey will be necessary to create a legal description.

  • I have a case involving adverse possession under color of title (it’s a secondary issue– the other side is arguing the deed my client’s predecessor recorded is void, and possession under color of title is my back-up response). Their response: “Well, you were possessing under that void deed we gave you, so that’s permissive so your possession wasn’t hostile.”

    Does that make any sense?

    • Larry says:

      If the deed is void, then no permission was given because it was a nullity. If the deed is not void, your client owns the property. I think.

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