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Tuesday, October 2, 2012

Adverse Possession in Rhode Island

Adverse possession is the process by which a non-record land owner can gain title to another record owner’s real property without compensation by holding the property in a manner that is hostile to the record owner’s rights for a period of ten years or more.  The transfer of ownership occurs after the adverse possessor has met all of the statutory requirements of adverse possession for a period of at least ten years.  A court action is often necessary to establish record ownership on behalf of the adverse possessor.

In accordance with Rhode Island General Law Adverse Possession is defined as follows: “§ 34-7-1 Conclusive title by peaceful possession under claim of title. – Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.”

The following example illustrates how adverse possession works in the state of Rhode Island:

The Monties purchased their property in 1990.  At the time of the Monties purchase there was a fence that ran the entire depth of their land.  From the time of the purchase through 2012 the Monties maintained the fence and the land under and around the fence.  The fence was in place and a barn along the boundary line had existed prior to the purchase.  The Monties made repairs to the barn including new shingles, windows, and a new roof.  The Monties have therefore made effective use of the property in question for the last 22 years.  Where any person was in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands claiming the land as his for the space of ten years may establish conclusive title.  R.I. G.L. 34-7-1.  The Supreme Court has long held that the elements to establish adverse possession are that it must be actual, open, notorious, hostile, under claim of right, continuous, and exclusive for at least ten years.  Sherman v. Goloskie, 188 A.2d 79, 83 (R.I. 1963).

In order to meet the open and notorious requirement, the Monties must show that their use of the land would “put a reasonable property owner on notice of their hostile claim.”  Gammons v. Caswell, 447 A.2d 361, 367 (R.I. 1982).  The court found that it is sufficient for the claimant to go upon the disputed land and use it adversely to the true owner and the owner then becomes chargeable with knowledge of whatever occurs on the land in an open manner.  Lee v. Raymond, 456 A.2d 1179, 1183 (R.I. 1983).  The court held that the owner was still chargeable with knowing whatever was done openly on the land he owned even though it could not be observed from the road or from the boundary of the property.  Tavares v. Beck, 814 A.2d 346, 352 (R.I. 2003).  The Monties kept goats they purchased in 1990 in the barn and maintained the property in dispute.  As set forth in Gammons, as a reasonable property owner, the abutting land owner, the Cappues were put on notice by the placement of the fence and the Monties’ open and notorious use of the land.  Many neighbors believed that the Monties owned the property as well.

The Monties’ use of the land was hostile and under a claim of right because permission was not given and the Monties treated it as their property.  To establish hostile use, the claimant must only establish a use “inconsistent with the right of the owner, without permission asked or given” such as would entitle the owner to a cause of action against the intruder for trespass.  Tavares, 814 A.2d at 351 (citing 16 Powell on Real Property, § 91.05[1] at 91-23 (2000).  The court held that where the claimant mistook his boundary, but continuously asserted dominion over the property for the statutory period, he was a hostile occupant of the land.  Taffinder v. Thomas, 381 A.2d 519, 523 (R.I. 1977).  A claim of right is established “through evidence of open, visible acts or declarations, accompanied by use of the property in an objectively observable manner that is inconsistent with the rights of the record owner.”  Tavares, 814 A.2d at 351.

The Monties’ use was continuous and exclusive as well since they maintained the property and kept their goats in the barn from the time they purchased the property through the present.  They have owned the property for 22 years and thus meet the statutory period of ten years.  As articulated above, the facts of this matter fully support all of the elements of adverse possession.  The Monties’ use was actual, open, notorious, hostile, under claim of right, continuous, and exclusive for over ten years. 

Richard E. Palumbo's practice focuses on Real Estate and Business Law including the following; Residential and Commercial Real Estate Closings (Purchases, Sales and Refinancing); Title Searches; Title Insurance; Title Defense Litigation; Quiet Title Actions; Purchase and Sales Agreement Litigation; Adverse Possession Litigation; Boundary Line Disputes and Easement Litigation; Foreclosure of Right of Redemption of Tax Liens; Partition in Kind and Sale Litigation; Mortgage Foreclosures; Condominium Law (New Projects, Conversions, Drafting and Re-Drafting of Condominium Documents; Developer – Declarant Representation, Association Representation, Assessment Collections and Condominium Lien Foreclosures, Dispute Resolution and Litigation); Residential, Commercial, Industrial, Telecommunication and Ground Lease Negotiation and Drafting; Residential and Commercial Landlord Tenant Law (Evictions for Non-Payment of Rent, Termination of Tenancies, Eviction for other than Non-Payment of Rent); Real Property Insurance Loss Assessments, Settlements and Litigation for Insured Owner’s of Residential and Commercial Property; Business Representation and Formations and  Real Estate and Business Litigation; Purchases and Sales of Business and Business Assets; Commercial and Business Litigation; Receivership Law; and Probate Law. 

 


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