Wills, Descent & Adverse Possession
~10 min read · Transfer without a sale: probate, intestate succession and adverse-possession elements.
Title moves without a sale more often than students expect: wills through probate, intestacy through the descent statutes, and — the exam's favorite drama — adverse possession, where trespass matures into title through ONCHA elements and the statutory clock.
Transfer at death
Testate: the will devises real property (devisees) through probate — the court proceeding proving the will and authorizing the executor to administer. Intestate: no valid will — the state's descent and distribution statute assigns heirs (spouse/children first), administered by a court-appointed administrator. Escheat to the state only when no heirs exist. Title vests subject to the estate's debts; probate deeds (executor's/administrator's) carry fiduciary-level warranties.
- Testate → will → devise → executor
- Intestate → statute → heirs → administrator
- Escheat: the no-heir backstop
- Survivorship property (joint tenancy) bypasses probate entirely
Adverse possession
Possession ripens into title when it is — ONCHA — Open and notorious (visible, as an owner would use it), Notorious/hostile (without permission, under claim of right), Continuous for the statutory period (seasonal use counts if characteristic), Hostile, and Actual (physical use; some formulations add exclusive). Some states require color of title (a defective deed) and/or payment of property taxes, often shortening the period. Tacking lets successive adverse possessors in privity add their periods together. The clock cannot run against government land. The possessor perfects record title by a quiet title action.
- ONCHA: open, notorious, continuous, hostile, actual (+ exclusive)
- Permission destroys hostility — a license defeats the claim
- Tacking chains successive possessors in privity
- Never against government property; quiet title perfects
Other involuntary paths
Foreclosure and tax sales transfer title through default; eminent domain through condemnation; partition through co-ownership breakups; natural forces through accretion (gradual soil addition — owner keeps it), erosion, and avulsion (sudden change — boundaries typically stay). Dedication passes land to public use. Each path has its own deed and its own warranty level — usually thin.
Worked example
In a 10-year adverse-possession state: the Nguyens fenced two feet over the boundary in 2012, gardening and maintaining the strip ever since. In 2018 they sold to the Parks, who continued identically. In 2023 the true owner mailed a letter 'granting permission to keep using the strip.' In 2026 the Parks sue to quiet title. Who owns the strip?
Build the clock. 2012–2018: the Nguyens' use was open (fence, garden), actual, continuous, hostile (no permission) — six qualifying years. 2018: the sale creates privity, so the Parks tack — by 2022 the combined clock reaches ten years, and title vested by adverse possession in 2022, before anyone wrote letters. The 2023 'permission' letter came too late: permission defeats claims still maturing, but cannot un-vest title already ripened (had it arrived in 2020, it would have destroyed hostility and reset everything). The 2026 quiet-title action merely converts vested-but-unrecorded ownership into record title. Sequence is everything: tacking builds the period; permission's timing decides whether it poisons or arrives past closing time.
Common exam pitfalls
Letting permission coexist with hostility.
Permitted use can never ripen — and a timely permission letter resets a maturing claim. Only PRE-vesting permission matters.
Requiring constant physical presence for continuity.
Continuous means consistent with the land's character — seasonal cabin use satisfies it for a cabin.
Running the clock against a city park.
Adverse possession never runs against government-owned land.
ONCHA plus the calendar — visible, unpermitted, unbroken, until the statute crowns the trespasser.
Recap
- Testate/intestate/escheat: the death-transfer ladder
- Probate administers; executors and administrators convey
- Adverse possession: open, notorious, continuous, hostile, actual (+exclusive)
- Tacking through privity; permission destroys hostility
- No adverse possession against the government
- Quiet title converts possession into record ownership
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