by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ADVERSE POSSESSION; TACKING: The only method by which an adverse possessor may convey title asserted by adverse possession is to describe in the deed that which is intended to be conveyed. Baylor v. Soska, 658 A.2d 743 (Pa. 1995). Possessors of land attempted to quiet title to a strip of land appurtenant to property acquired by deed 15 years prior (the period for adverse possession in the jurisdiction is 21 years). This strip of land had been maintained by the predecessor in title, and for 15 years the present owners maintained the property. However, the deed did not mention the predecessor's rights in the appurtenant parcel. The court found that without reference to the disputed tract or to the grantors' inchoate right, the grantee could not tack the predecessor's interest and could not claim more than was described in the deed.

As this case represents an important common law development, it is worth quoting the court's analysis at some length.

There must be no secret that the adverse possessor is asserting a claim to the land in question. If the adverse possessor's claim is to be passed on to a successor in title, therefore, there must be some objective indicia of record by which it can be discerned with some degree of certainty that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title. . . .

Whenever a grantor seeks to convey an inchoate claim of adverse possession, what is required is a reference to the disputed tract or to the grantor's inchoate right. . . There is good reason for this requirement. Interested parties have a right todiscern from the record the state of the title of any parcel of land. If tackingwere to be permitted because of vague, undefined "circumstances," there could and most likely would be no way for one not a party to the conveyance to know this. But the law mandates that a person asserting a claim of adverse possession make this assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question.

It might be argued that if the original adverse possessor were simply to remain on the land and there were no action in ejectment, nothing of recordwould appear to indicate the adverse possessor's interest, and therefore, there should be no requirement that the record reveal the adverse interest of a successor in title. First, nothing of record need appear concerning the successor's adverse possession claim. It is only the predecessor's claim which the successor seeks to tack that is at issue. Second, public policy requires that when an interest in land is conveyed to another, the interest of the successor in title be described as nearly as possible, withholding nothing which could and should at that time be made visible. Otherwise, needless complexity and uncertainty is introduced into conveyancing."

The trial court, consistent with the likely approach in most other jurisdictions, had held that circumstances other than the written record can indicate an intent on the part of the grantor to convey adversely possessed land. The trial court did not permit tacking as to all land that had been adversely possessed by the predecessor, but did allow it as to a garage and driveway that had been constructed and maintained by the predecessor. It reasoned that these improvements necessarily passed with the transfer of the title of the property to which they related, and that this satisfied any requirement for privity. The Pennsylvania Supreme Court resoundingly slammed the door on such an approach.

Comment: Eastern states generally are more hostile toward adverse possession doctrine than many western states. Time periods are much longer, and requirements more strictly defined. The general approach nationwide, however, is to view adverse possession as a useful tool in clearing title in favor of uses that have been made continuously for an extended period. Here, there is no question that there was a continuous, exclusive use for the adverse period. The court acknowledges that if the use had been carried out by a single party, regardless of the lack of any record claim, there would be transfer of title by adverse possession.

In the instant case, the successor to the original adverse user certainly expected to get the garage and driveway attached to the house, and the grantor probably expected to convey that property. Had the grantor owned that property, and failed to describe it in the deed, we probably would have had a case for reformation. The court's distinction of this case from the single user case is difficult to understand on any policy ground other than an apparent view in Pennsylvania that adverse possession is a suspect doctrine that should be narrowly applied.

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