The Importance Of Adverse Possession
To claim adverse possession, the claimant has must establish by the preponderance of the evidence that his possession was hostile, actual, open and notorious, exclusive, and continuous for a ten year period. See § 516.010 RSMo. 1969. Accord Walker v. Walker, 509 S.W.2d 102, 106 (Mo. 1974) (listing the common law elements of adverse possession). When co-tenancy exists, acts that could typically constitute exclusive and hostile possession, may be consistent with the concurrent tenancy. This is because a co-tenant, unlike a common trespasser, has every right to be on the property and to possess it so long as he does not oust his co-tenants or otherwise disregard their rights. Accordingly, in cases of co-tenancy, the claimant must overcome a strong presumption against the hostile element to assert adverse possession. Mann, 353 Mo. at 633. The claimant must act outwardly, unequivocally and in violation of the other co-tenants ownership interests, exercising sole ownership. Golden, 180 Mo. at 204. See also Crews v. Maupin, 285 Mo. 466, 481-82 (requiring that a claimant must show intention to hold the land against the rights of his co-tenant); Teson, 561 S.W.2d at 127 (stating that the claimant must intend to solely possess the land in cases of co-tenancy); Mann, 353 Mo. at 622 (requiring adverse possession function as a bar to another co-tenant); …show more content…
Elmer Stoltzfus Failed to Meet the Raised Standard for the Adverse & Hostile Element of Adverse Possession.
A. Elmer’s use of the land was not adverse and hostile because it was permitted by Sabrina. To be considered hostile and adverse, Elmer would have had to act unequivocally, outwardly, and irreconcilably with Sabrina’s ownership interests for the statutory ten years. Golden, 180 Mo. at 204. Sabrina’s verbal permission for Elmer to “do whatever you want” to the farm defeats Elmer’s adverse possession claim. Elmer’s Deposition at 2. Acts expressly permitted by a co-tenant cannot possibly be “hostile” to that tenant. Bass 811 S.W.2d at 779.
By granting him permission to use the land as he wanted, Sabrina kept an ownership interest in the farm, though Elmer was able to use it to make a living, much like how a business may rent their facilities. Sabrina did not charge him for use of her fifty-percent likely because (1) Elmer had every right to farm the land even without her permission; and (2) she did not need the money and because charging him rent would have increased her interactions with