Daily Development for Wednesday, October 20, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF “CONTINUOUS; EFFECT OF LAWSUIT: In a case of first impression, the District Court of the Virgin Islands, Appellate Division provided guidance on the meaning of “continuous” in the context of the Virgin Island’s adverse possession requirement that a person have continuous possession for 15 years before assuming title to real property.

DeCastro v. Stuart, 2004 WL 744194 (D. VI. 2004).

In 1974, DeCastro built a residence on land that belonged to Farrington. In May 1980, Farrington obtained a court order declaring that the DeCastro residence was built on land belonging to Farrington and ordering that DeCastro’s possession be terminated. (The specific cause of action was erroneous, according to the court, but it accepted the intended meaning of the earlier judicial order.) In June 1980, a deputy marshal entered the land with the intention of evicting DeCastro. The marshals, however, did not remove DeCastro from the land, and DeCastro remained on the land. Thus, the court order was not enforced.

DeCastro remained on the land. In 1993, in response to Farrington’s threat of further litigation, DeCastro agreed to purchase the land from Farrington in 1993. DeCastro made a down payment of $5000, which Farrington accepted, but DeCastro thereafter made no further payments and defaulted on the contract. In 1995, Stuart purchased Farrington’s interest in the land and attempted to remove DeCastro from the land. In response, DeCastro claimed that he had acquired title to the land through adverse possession.

The first issue was whether the May 1980 court order interrupted the adverse possession, even though the order was not enforced. The court held that the order did interrupt the continuous possession because court rulings should be given more weight than the physical acts of litigants in remaining on or leaving land. However, the court found that a new period of adverse possession began the day after the order and would continue until further action was taken.

The second issue was whether the marshal’s entry in June 1980 constituted further action that interrupted the adverse possession, even though DeCastro was not removed. The court held that, despite the marshal’s intention to evict DeCastro, there was an issue of fact as to whether DeCastro actually relinquished possession. Since the trial court’s finding that DeCastro had not relinquished possession was not clearly erroneous, the court found that the marshal’s entry did not interrupt the continuous possession that began in May 1980.

The final issue was whether DeCastro’s down payment in 1993 interrupted the adverse possession. Here the court found that Farrington’s agreement to sell the property along with Farrington’s acceptance of the down payment as partial performance meant that DeCastro had gained equitable possession to the land and was no longer an adverse possessor. Thus, DeCastro only had 13 years of continuous possession, which was insufficient for an adverse possession claim. However, since he had equitable possession, DeCastro was entitled to gain full title to the property by paying the remaining balance to the security possessor, Stuart.

Comment: As we don’t have the contract, and since the editor is unfamiliar with Virgin Islands law on the subject of installment contracts, it is difficult to say whether Stuart really should have been granted a right to declare DeCastro’s interest forfeit. Many jurisdictions treat such contracts as equitable mortgages and recognize an equity of redemption, such as the court did here.

The rest of the opinion is correct. Although certainly resistance to the order of a marshal sent to enforce a court order is wrong, there is no doubt that it is an act of adverse possession. In fact, there undoubtedly are courts that would hold that the simple entry of a court order awarding possession ought not to be treated as interrupting a running possession. The editor prefers the construction given by the court here, as it tends to push parties in these disputes toward the courtroom rather than the gun room.

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