Daily Development for
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
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 (
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
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
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
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