Fulkerson v. Van Buren

Court of Appeals of Arkansas · 1998 · Property

PropertyAdverse possessionadverse possessionhostilityintent to hold against true ownerrecognition of titleholderseven-year periodreligious society

Facts

Fulkerson had held legal title to the 4.5-acre parcel since December 1949. In 1985, the Progressive Church began using the church building on the parcel as its place of worship without obtaining permission from Fulkerson and made substantial improvements to the building and surrounding land. Around 1990, Fulkerson and Reverend Van Buren discussed a possible lease, but no agreement was reached. Reverend Van Buren testified that he did not know the nature of the church's right to the land until 1990 or 1991, accepted as fact that Fulkerson held legal title after investigating, and said the church decided to claim the land only after Fulkerson sought to have it leave in 1994.

Issue

Whether the Progressive Church proved adverse possession of the parcel by showing seven years of possession that was hostile and under a clear, distinct, and unequivocal intent to hold against Fulkerson, the true owner. More specifically, the question was whether the church possessed the required adverse intent for the full seven-year period.

Rule

To establish title by adverse possession, a claimant must prove continuous possession for more than seven years that is visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. Possession is hostile only if it is under a claim of right, title, or ownership rather than in conformity with, recognition of, or subservience to the superior right of the titleholder. Mere possession is presumed subordinate to the legal titleholder, and the intention to hold adversely must be clear, distinct, and unequivocal for the required seven years.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In rural Ohio, Dana Mercer began using an abandoned meeting hall on a 3-acre tract in 2014, fenced the yard, and repaired the roof. In 2018, after searching county records, Dana learned that Owen Pike held record title, told neighbors Owen was the owner, and asked Owen to deed the tract over; Owen refused. Dana stayed until Owen sued in 2024, and Dana claimed adverse possession.

Under the majority rule applied here, is Dana most likely to establish title by adverse possession?

Explanation. The majority required more than occupancy and improvements. Possession must be hostile, meaning held under a claim of right rather than in recognition of or subservience to the titleholder. Mere possession is presumed subordinate to legal title, and the intent to hold adversely must be clear, distinct, and unequivocal for seven years. Because Dana later acknowledged Owen's ownership and sought a deed from him, the necessary hostile intent for the full seven-year period is not shown.