Daily Development for Monday, November 18, 2002

 

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Law
UMKC School
of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
Missouri
prandolph@cctr.umkc.edu

 

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; LIFE ESTATE:   Adverse possession commenced during the period of a life tenancy is hostile only as to a life tenant, and not as against remanderpersons.

 

Schaeffer v. Maddox, 794 So. 2d 1139 (Ala. App. 2001)

 

In 1963, Father built a church on one acre of land that he owned.  In 1968, he deed the property to the Church.   In 1972, Father deed the entire property to his daughters, reserving a life estate. That deed arguably contained an exclusion for of the Church land, but for purposes of this discussion, we will assume that this exclusion was invalid, as the Church tried to avoid litigating the issue of the validity of the exclusion by arguing that it owned the land by adverse possession.

 

The reason that the issue came up at all is that in 1978, in the course of a dispute between Father and te Church, the Church deeded the property back to Father.  Thus, if the exclusion was not valid, the daughters held the remainder interest in the property, including the Church land, which accrued to their interest by operation of after acquired title.

 

In any event, the Church continued to occupy the property from 1978 forward.  The father died in 1993 and the daughters some time thereafter sought trespass damages and declaratory relief on the theory that they owned the fee interest following the Father's death.

 

The trial court, likely desiring to dodge all of this complex analysis of the validity of the exception and the application of after acquired title, submitted the facts to the jury on the theory of adverse possession.

 

On appeal: held: Reversed.

 

On this point, the court found that adverse possession had not run because prior to 1993 it was the father, and not the holders of the remainder, was the party entitled to possession of the property pursuant to his reserved life estate.  By the argument of the Church, its adverse possession would have commenced at the time that the Church deeded the property back to the Father in 1978.  That was after the Father had created a remainder in the daughters with a reserved life estate in himself.  An adverse possession that commences against a life tenant will take only the life tenant's interest, and the adverse possession period must run again if the possession continues after that tenant's death.   As the court pointed out, this would have been in 1993, and the Mississippi ten year statute would not have run before the daughters brought this action.

 

Unfortunately for the daughters, their victory was short lived.  The court then moved to the issue of the validity of the exclusion of the church property from the deed to the daughters.  It concluded that the exclusion was valid, albeit somewhat ambiguous (it stated only that "the Lot for the Church be taken off").  Other evidence cured the ambiguity as to the property in question.  Further, although Alabama requires two witnesses to a deed, there was no requirement that an exclusion on the face of a deed must be separately witnessed if, as here, the exclusion was initialled by the Father and the Father and the  witnesses signed the deed.

 

Comment 1: The editor chose this case because it applies modernly a doctrine commonly stated in the law books, but which some lawyers may forget upon graduation - adverse possession will not run against a remainder interest if it commences during the preceding life tenancy. You have to start counting all over again when the life tenant dies.

 

The theory supporting this doctrine is said to be that the remainderperson has no present right of possession and therefore should not be barred for failure to bring an ejectment action, since that action apparently is viewed as requiring a present right of possession.

 

Of course, if we really wanted to bind remainders on a running adverse possession, we could say that the remainderperson are permitted to bring an action in ejectment or declaratory relief to protect adverse possession from running.  By giving the remainderperson the right, we could extinguish it by adverse possession in the appropriate case.  The courts haven't done this, despite the inconsistency between this rule and the usual generous treatment of open and notorious adverse possessors who use land as their own.

 

Comment 2: There has been much speculation, but little decided authority, on the question of whether the same rule ought to apply in long term leases.  Should be running of adverse possession that began and continued during the term of the  the tenant's estate also be viewed as a termination of the landlord's interest?  Clearly landlords have more power, typically, than remainderpersons, and often reserve various rights to protect their reversionary interest by entry on the land for various purposes.   In the editor's view, however, there is nothing in the typical leasehold arrangement that warrants treating that situation any differently.  Little authority here.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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