Adverse possession and claim of ownership

Adverse Possession and Belief

Adverse Possession and Claim of Ownership

We previously wrote here about the elements of an adverse possession claim. One of those elements is called “claim of ownership.”

In this post, we go into more detail about what is, and is not, a claim of ownership.

Proving that possession began under a “claim of ownership.”

Exactly what does that mean? Some examples from Mississippi case law will help make it clearer.

“To be sure, our law recognizes an adverse possession claim where one enters into possession of land under the mistaken belief  that it lies within the calls of his deed. If under such belief he occupies it adversely against the world for the statutory period, he will acquire title thereto.” Davis v. Davis, 508 So.2d 1062, 1065-66 (Miss. 1987) (emphasis added).

But, “one cannot set out to adversely possess the property of another, that is to say, the ‘claim of ownership’ must exist at the beginning of the ten-year statutory period.” Blackburn v. Wong, 904 So.2d 134, 137 (Miss. 2004).

In that case, the Blackburns put up a fence and enclosed a portion of Wong’s property. They were on notice, however, that the enclosed property belonged to Wong.

After 10 years had passed, they filed suit and claimed adverse possession. The chancellor denied the claim, and the Mississippi Supreme Court affirmed.

In doing so, the Supreme Court noted:

This is another one of those cases based upon the misconception that possession of property is sufficient to sustain a claim of ownership by adverse possession. The claim of ownership must have existed at the beginning of the statutory period of possession and not possession with the intent to claim as soon as the statutory period passed.

Blackburn at 137, citing Coleman v. French233 So.2d 796, 796-97 (Miss. 1970) (emphasis in original).

Because the Blackburns knew where their property line actually was, and because they knew they were enclosing Wong’s property, they could not prove the “claim of ownership” element of their claim.

Earlier this year, the same issue arose in Presley v. Stokes, No. 2018-CA-01236-COA, at *2 (Miss. Ct. App. Feb. 11, 2020). The facts in Presley were as follows.

Presley and Moorehead purchased of a large tract of land from the Cannons. The deed excepted from the conveyance “Parcel 5” owned by the Cannons. Parcel 5 was later sold to Stokes and Heard.

Presley and Moorehead later filed suit against Stokes and Heard and claimed adverse possession of Parcel 5. They claimed that they believed that all of Cannon’s fenced in land (which would include Parcel 5) had been sold to them.

If that was true, they could meet the “mistaken belief” test and establish the claim of ownership element.

But, the Court of Appeals noted a plain reading of the deed would have put them on notice that the disputed Parcel 5 tract was not conveyed by their deed. Presley at *6.

Thus, the “claim of ownership” element of an adverse possession claim essentially means the person claiming adverse possession needed to believe, at the beginning of the ten year period, that he owned the land in question.

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