Daily Development for Thursday, September 11, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
ADVERSE POSSESSION; ADVERSE POSSESSION TITLE: Once adverse possession is completed, the adverse possessor will be viewed as transferring the adversely possessed property if such possessor also transfers adjacent property of which the adversely possessed parcel is an apparent part, even though not described in the deed.
Lacy v. Adams, 256 S.W. 2d 610 (Mo. App. 2008)
In 1938, one Allen owned adjacent parcels, and conveyed one of them to a relative, Eichler, and her husband. The property had a house on it, which Eichlers used as a rental. In 1971, Eichler’s daughter, husband and child moved into the house. Mr. Eichler built a fence to protect the child. The fence enclosed a portion of the adjacent property, which apparently was still owned by Allen.
The Eichler’s daughter, Allen, lived in the property for most of the ensuing 10 years. They then had a home elsewhere, but continued to visit and use the house occasionally until 1991, when they resumed residency there. In 1993, Mrs. Eichler, then a widow, transferred the house to Allen. In 1993, Allen removed the fence.
In 2005, plaintiffs purchased the adjacent property, apparently from relatives of Allen, and in the course of remodelling that property they fell into a dispute with Allen about the area of their legally described parcel that had been enclosed by the fence.
Held: Under Missouri’s ten year adverse possession statute, Eichlers had obtained title by adverse possession to the property during the period 1971-1981. Thus, when Mrs. Eichler transferred to Allen in 1983, adverse possession was completed.
Plaintiffs pointed out that the deed from Eichler to Allen did not describe the property. But since the property at the time was fenced together with the house, the court concluded that the Eichler’s obvious intent was to transfer the adversely possessed property together with the rest of the parcel. The question is not what was described in the deed, but “the intended and actual transfer of possession of the land held adversely.”
Plaintiffs also argued that a great degree of stronger evidence of adverse possession is necessary to support a claim by a relative against adjacent property owned by another relative. The court confessed that this was true under Missouri authority, but does not mean that there can never be adverse possession in such cases. Here we had a fence that stood for the entire statutory period (and for far beyond that).
Comment: This is hornbook law, but it is always worth reviewing these principles. A completed adverse possession remains after the evidence of it is gone. Further, an intent to transfer adversely possessed property will pass that property along with a deed that describes adjacent property, notwithstanding Statute of Frauds, recording acts, and other issues. Note further that adverse possession need not be recorded, so subsequent BFP’s of the described property are out of luck, even if they had no knowledge, actual or constructive that the property they bought had earlier been adversely possessed by another.
This case is a good example of the problem. The plaintiffs here were caught completely by surprise. There was no fence when they bought their lot, and they had every reason to believe they owned what their deed described. Not so, unfortunately, but for what the editor believes to be good and sufficient reasons.
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