The party that wishes to assert adverse possession despite not having true title must:  Make an actual entry giving the adverse possessor exclusive possession that is:

  • open and notorious;
  • adverse and under a claim of right; and
  • the adverse possession must be continuous for the statutory period.

Note:

  • Usual requirement for exclusive possession is cultivation and a claim of title.
  • Some requirements require substantial enclosure (Van Valkenburgh)
  • Paying taxes may = adverse possession
  • State of mind of the person asserting adverse possession is not relevant.
  • Open and notorious must be a big encroachment or known to the person who has title.
  • Open and Notorious meets the reasonable notice requirement
  • Adverse must equal hostile, hostile must equal adverse to true title.