Adverse possession of real property must be hostile, actual, open, exclusive and continuous

Mollie Pawlosky Iowa Real Estate & Land Use Iowa Commercial Litigation Law Dickinson Law Des Moines Iowa

Posted on 03/10/2016 at 12:00 AM by Mollie Pawlosky

The Iowa Court of Appeals on March 9, 2016, applied the basic principles of adverse possession and reversed the trial court, finding that the plaintiff had not proven that he held the property hostilely, actually, openly, exclusively, and continuously for the requisite ten-year period.

In Koether v. Elliott, No. 15-0172 (Iowa Court of Appeals, Mar. 9, 2016), the Court of Appeals began by acknowledging that proof of the elements of adverse possession must be “clear and positive,” because the doctrine of adverse possession is strictly construed.

Koether claimed that he had established adverse possession by “claim of right,” using the property “openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner.” Koether was also required to establish good faith, that is, that he used the property without payment of rent or recognition of title in another, or disavowal of title in himself. However, ownership cannot be acquired by claim of right by one who knows he does not have good title; thus, good faith is not established if the evidence demonstrated that Koether knew that he has neither good title or a basis for claiming good title.

The Court of Appeals held that Koether’s claim of ownership was not supported by clear and positive proof. First, Koether occupied the land with the permission and consent of his parents, such that he could not claim that his adverse possession of the land started before his mother’s death in 2004. Because Koether filed the petition to quiet title, asserting the claim of adverse possession in 2013, Koether had not adversely possessed the property for the requisite ten year period. The Court of Appeals also noted that Elliott had paid the property tax for the property and insured the property, and that Elliott in 2012 had served Koether with a notice to quit and a notice of termination of farm tenancy. Thus, the Court of Appeals reversed the ruling of the district court.

In January 2016, the Court of Appeals had reached the opposite conclusion in Nafziger v. Pender, No. 15-0327 (Jan. 13, 2016). Nafziger addressed a boundary by acquiescence, which is somewhat similar to adverse possession, but only deals with the portion of the land that is affected by the disputed boundary. Like adverse possession, a boundary by acquiescence must be proven by clear evidence, and the owners must acquiesce in the boundary line for at least ten consecutive years. The main distinction between Nafziger and Koether appears to be that Nafziger’s usage of the property at issue was inconsistent with the neighbor’s ownership interest in the property, but Koether’s usage of the property, at least during his parents’ lifetime, was consistent with his parents’ ownership interest, such that Koether’s usage of the property was not sufficiently adverse.

For questions regarding Koether v. Elliott or other real estate disputes, contact Mollie Pawlosky.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.


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