Daily Development for
Thursday, August 14, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ADVERSE POSSESSION; REQUIREMENT OF CONTINUITY; PRIVITY: Although claimant asserting title by adverse possession did have possession of the land in controversy, claimant failed the twenty-one year requirement because the claimant could not "tack" to prior possession where deed from prior possessor failed to mention the disputed parcel.

Moore v. Duran, 687 A.2d 822 (Pa.Super. 1997).

The court found that actual possession of a piece of farm land had been established since three sides of the land had been inclosed by a fence. In 1978, after the father had already satisfied the 21 year requirement, he transferred his farmland to his son, and failed to reference the disputed parcel.

Held: Although the land had been in the same family for 50 years, the son, in 1996, could not satisfy the 21 year requirement, since his deed did not convey the father's inchoate rights acquired by incompleted adverse possession. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it.

Comment 1: This decision departs from a rule applied in a number of cases that would view the intent of the parties, as demonstrated by the transfer of possession at the time of delivery of the deed, as sufficient to show that the adversely possessed property had passed. The "intent" rule is included in an old "chestnut" in Property casebooks, Porter v. Posey, 592 S.W.2d 844 (Mo. App. 1979).

Often it is the case, as here, that the grantor of property is unaware that the legal description he is using does not include certain property he believes to be his. It seems pointless, many years later, to require the grantor (or the grantor's estate) to establish adverse possession title when there is no question that the grantor intended to vest complete ownership of all property possessed in the grantee.

Comment 2: This case is particularly interesting because the appellate court went out of its way to strike down the reasoning of the trial court that support the trial court's conclusion that adverse possession had not been established because there was inadequate evidence of actual possession. After spending several pages criticizing the trial court's reasoning, the court goes on to affirm the result based upon this rather unwieldy rule.

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