1 Cameron WaddellTo: Supervising AttorneyFrom: Cameron WaddellRE: Stark Adverse. Possession Claim Question Presented In North Carolina, will one have an adverse possession claim against a cotenant, when aperson owns real property as a cotenant with another and that person maintains sole possessionof the property for 19 years, while building a resort on said property, without the cotenant’sknowledge or permission? Brief Answer No, in North Carolina one must show either constructive or actual ouster of a cotenant inorder to have a valid claim of adverse possession against that cotenant. Because the statute oflimitations has not been met for constructive ouster, it will not apply. Further because there is noevidence of an action that denies the cotenant’s right to the property, actual ouster will not befound. Having neither constructive nor actual ouster of the cotenant, the claim of adversepossession would be unsuccessful. Over Arching Conclusion and Rule Tony Stark will be unsuccessful in an adverse possession action against Ivan Vanko, overthe mountain property, because Stark fails to meet either actual or constructive ouster of acotenant. North Carolina law has set forth that, “As between tenants in common, adversepossession is governed by its own set of rules.” McCann v. Travis, 63 N.C. App. 447, 305 S.E.2d197, 1983 N.C. App. LEXIS 3118 (1983). Courts have found that in cases of adverse possessionagainst a cotenant, one must have actual ouster, which is when there is, “…an entry orpossession of one tenant in common which may amount to an actual ouster…but it must be bysome clear, positive, and unequivocal act equivalent to an open denial of his right and to puttinghim out of the seizin.” Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906). In cases whereactual ouster does not exist, the court may consider constructive ouster when , “…one tenant incommon and those under who he claims have been in sole and undisturbed possession and use ofthe land for twenty years when there had been no demand for rents, profits or possession.”Casstevens v. Casstevens, 63 N.C.App. 169 (1983). Generally, adverse possession against a cotenant is
2 Cameron Waddellwhen a tenant takes sole possession of property by either constructive or actual ouster of a cotenant.Dobbins, 141 N.C. at 214. Discussion Stark and Vanko are cotenants of the contested land because it was conveyed to each ofthem by their respective father’s. Stark’s possession also qualifies as possession for Vanko.North Carolina common law has set forth that cotenants hold title to the property throughseparate titles, but that the possession of one cotenant qualifies as possession for all othercotenants. Dobbins, 141 N.C. 210. Having found that the possession of one cotenant is good as possession for all cotenants,the court has set forth a separate standard for adverse possession in these cases, requiring one toprove ouster of the other cotenant. Dobbins, N.C. 210 at 214. In Dobbins, the court held that in acircumstance where there is a dispute among heirs whom are cotenants, the standard of adversepossession will be the rule of cotenants rather than the general rule. Stark acquired his share in the property via a will left by his father Howard Stark. Vankoacquired his claim to the land by intestate succession from his father Anton Vanko. This situationparallels with the holding of the Dobbins court in that, two heirs of property are cotenants andare thus subject to the common law requirements for adverse possession of cotenants. Dobbins,N.C. 210 at 214. Thus the standard for Stark’s claim of adverse possession against Vanko’sproperty right would be adverse possession regarding a cotenant as opposed to the general lawregarding adverse possession.
3 Cameron Waddell Stark and Vanko are cotenants. Each holds an individual title to the land and Stark’spossession of the land would qualify as possession for Vanko. Therefore the common lawprincipals of adverse possession in co tenancy would apply. Actual Ouster Starks possession of the land would not qualify as actual ouster because there is noevidence that Stark acted in a hostile way towards Vanko’s right to the property. North Carolinacommon law states that actual ouster in a cotenancy must be made by one cotenant to the other.However it must be brought by “an unequivocal act equivalent to an open denial of his right andto putting him out of the seizin.” Dobbins, N.C. 210 at 214. Therefore in order to prove actualouster, one must show evidence of an act that is hostile and denies the cotenant the right to useand possess the property. Elementally, actual ouster looks like this, 1) Entrance or possession byone tenant that is clear, positive and hostile 2) that denies the cotenant the right or use of theproperty and puts the cotenant out of seizin. Dobbins, N.C. 210 at 214. Stark’s possession of the land was not clear, positive and hostile towards Vanko. NorthCarolina common law has set forth a standard that requires one to show an action which in allregards is hostile towards the cotenant in order to find actual ouster. Therefore to show actualouster of a cotenant one must possess the land in a way that is open and clearly hostile towardsthat cotenant. Willis v. Mann, 96 N.C. App. 450 (N.C. Ct. App. 1989). In Willis, the court set forth that cutting timber on land that was claimed by the defendant,was sufficient evidence of open and hostile possession. Willis, 96 N.C. App. 450 at 454. Also theWillis case mentions that a mobile home was placed on the land that was disputed. Thus courts in
4 Cameron WaddellNorth Carolina have found that cutting timber or harvesting the resources of disputed land orplacing a structure on land claimed by the cotenant is sufficient evidence of open and hostilepossession. Willis, 96 N.C. App. 450 at 454. Starks case is somewhat similar to the situations presented in Willis. In Willis the courtfound that the placing of a mobile home against the wishes of a cotenant would be consideredevidence of open and hostile possession against the cotenant. Willis, 96 N.C. App. 450 at 454.Stark has erected a resort on the mountain property including a lodge which he publicallypromotes as a Tony Stark Project. The action of building a resort on the property without noticeto a cotenant would qualify as a clear and hostile action against that cotenant. Stark’s actionswould be clear and hostile if Vanko had objected to Stark’s improvements, requested profits orotherwise made a claim. Given the facts, Stark’s case is not like Willis because at no point didVanko acknowledge the behavior as hostile or raise a claim for the property. Further, Stark nevermade it clear that his claim was intended to be construed as hostile towards Vanko. A keyelement in the Willis case was that the cotenant identified that the land was under dispute andobjected to the action taken. Willis, 96 N.C. App. 450 at 454. Here, Stark made nocommunication with Vanko regarding the property and it is unclear as to whether Vanko evenknows about his right to the property. Stark would be unable to show an entrance or possession that is clear, positive and hostilebecause his actions were not clearly hostile to Vanko’s property rights. Since Vanko neverentered the land himself or disputed the efforts of Stark it could not be seen as an action adverseto Vanko. Thus Stark would unable to claim an entrance or possession that is hostile towardsVanko.
5 Cameron Waddell Denial of the cotenants legal rights to the property is also necessary to make a claim foractual ouster. North Carolina common law notes that one must, act in a way that denies thecotenant the right or use of the property and puts the cotenant out of seizin. Dobbins, N.C. 210 at214. Thus an action must prevent or interrupt the legal property rights of the cotenant to meet thestandard set forth for actual ouster. Dobbins, N.C. 210 at 214. The Willis case provides an example of what North Carolina courts have found to beevidence of denying a cotenant their property rights. In Willis the cotenant is not permitted to cuttimber on the property in question. Willis, 96 N.C. App. 450 at 454. Thus it can be said that theactive denial of the right to use or modify the property would satisfy the denial of property rightsnecessary for actual ouster. Willis, 96 N.C. App. 450 at 454. The case for Stark differs from Willis because Vanko has never made a claim to theproperty. In order to deny or interrupt Vanko’s property rights, Stark must have acted in a waythat prevented his use of the property or denied Vanko access to the land. In Willis the cotenantis prevented from cutting timber. Willis, 96 N.C. App. 450 at 454. Vanko has yet to make aclaim, attempted to enjoy or bring profit from the mountain land in question. Therefore based onthe ruling of Willis, Stark has not acted in a way that denied or lessened the property rights ofVanko. The actions of Stark were not clear, positive and hostile to Vanko’s property rights. Starknever demonstrated a denial or interruption of the right Vanko has to the property. Therefore hewould not meet that element of actual ouster.
6 Cameron Waddell Stark would not a have a claim for actual ouster in a manner adverse towards Vanko.Stark does not demonstrate that he has sole possession of the land in a way that is clear andhostile towards Vanko. Further, Stark does not demonstrate that his actions were set forth in away that would deny or prevent Vanko from exercising his right to the property. Constructive Ouster A claim for Stark regarding constructive ouster would fail because his possession and useof the property does not meet the requisite twenty years to pass the statute of limitations forconstructive ouster of a cotenant. Courts in North Carolina have set forth that constructive ouster,which creates a presumption of actual ouster, is made when a tenant maintains sole possessionand use of the property without the other cotenant making a claim and without anyacknowledgement of the cotenants right for the statutorily set twenty years. Constructive ousteroccurs when, a tenant who, 1) maintains sole possession and use without a claim being made bycotenant, 2) and without any acknowledgment of the cotenants right 3) for the statutorily settwenty years. Rhea v. Craig, 141 N.C. 602 (N.C. 1906). Casstevens v. Casstevens, 63 N.C.App.169 (1983). Young v. Young, 43 N.C. App. 419 (1979). Stark does maintain sole possession and use of the property without a claim being madeby Vanko, so he would meet that requirement for constructive ouster. The rule in North Carolinastates that a tenant must maintain sole possession and use of the property and that no claim ofright is made by the cotenant. Rhea v. Craig, 141 N.C. 602 (N.C. 1906). Casstevens v.Casstevens, 63 N.C.App. 169 (1983). Courts in North Carolina have found constructive ouster where deeded property was splitup, and when the tenant possessed and cultivated the land, it did constitute possession as long as
7 Cameron Waddellno claim for profits or rent is made by the cotenant. Rhea, 141 N.C. 602 at 611. Rhea finds that,taking possession along with entry and improvement to the land in a public manner is sufficientfor sole possession so long as no claim is made by the cotenant. Further courts have ruled thatwhen a tenant and those to whom he conveys the property, rent, farm and otherwise collectprofits, this will qualify as use and possession of the land. Collier v. Welker, 19 N.C. App. 617(N.C. Ct. App. 1973). Stark entered into the mountain land in 1991, he began paying property taxes and had aluxury camper installed on the property. Later on in 1993 Stark transformed the property into aresort he named The Lodge. Stark’s development of the land is similar to Collier, where a housewas rented for profit and that constituted sole possession and use of the property. Collier, 19N.C. App. at 617. Stark transformed the vacant mountain land into a resort with which Starkmade a significant profit. As the Rhea court set forth, one must not only possess and use theproperty but it must be done without a claim to profits or rights by a cotenant. Rhea, 141 N.C. at602. Vanko proposed a meeting with Stark to discuss common interests but he made no requestfor profits or attempted to assert his right to the property. The mountain land or Vanko’s rights toit have yet to be mentioned by either party. Stark has been in sole possession of the mountain land, used it for his profit and done sowithout a claim being made by Vanko for profits or rights to the land. Therefore he would meetthe standard for sole possession and use without a claim of right by a cotenant, in regards toconstructive ouster of a cotenant. Stark never acknowledged Vanko’s right to the property and thus his claim would besuccessful in that aspect of constructive ouster. North Carolina law has stated that in order for
8 Cameron Waddellone to make a successful claim of constructive ouster, one must not acknowledge the propertyrights of a cotenant. Woodlief v. Woodlief, 136 N.C. 137 (N.C. 1904). Woodlief asserts that onemust possess the property without acknowledging the right of another cotenant in order to findconstructive ouster. North Carolina courts have found the acknowledgement of the property rights of a tenantwhen property taxes were paid on the under a jointed name. Herbert v. Babson, 74 N.C. App.519, 522 (N.C. Ct. App. 1985). In Herbert, the court found that where property taxes were paidunder the name “Heirs of Henry Herbert", all cotenants were included, this was adequateacknowledgment of a cotenant’s property rights. Herbert, 74 N.C. App. at 522. Further commonlaw has shown that conveyance of land indicates a lack of acknowledgment of a cotenants rightto the property. Ellis v. Poe, 73 N.C. App. 448 (N.C. Ct. App. 1985). In Ellis the court held thatone must show proof of an “express or active acknowledgment of a cotenancy by the possessor”.Ellis, 73 N.C. App. at 451. Upon the initial investigation launched by Stark regarding the mountain property, Pottsdiscovered the property had been conveyed to both his father Howard Stark and Anton Vanko.Anton Vanko was recently deceased but it was possible that he had a son, however no substantialproof could be found at the time. Given the standard set forth in Ellis, and the fact that Stark hadno idea if Vanko existed or not he could not express or acknowledge the existence of Vanko as acotenant. Ellis, 73 N.C. App. at 451. Also a local businessman who knew Grandpa Starkmentions Vanko and asks if he is involved, Stark simply denies his involvement in the project.Although this would give credence to the existence of Vanko, Stark never acknowledges hisright to the property in an “active or express” way as the Ellis court necessitates. Ellis, 73 N.C.
9 Cameron WaddellApp. at 451. However the issue raised by Herbert, is in some ways similar Stark’s claim. InHerbert an acknowledgment of a cotenant is found where taxes are paid on a deed that is listedas belonging to a set of heirs. Herbert, 74 N.C. App. at 522. Stark began paying property taxesout of his own personal account in 1991. Given that the property was conveyed to Anton Vankoand Howard Stark equally that creates the possibility that an heir to Anton Vanko’s right exists.The distinction between the two cases is that in Herbert the heirs are known and a conveyance isgiven to all the cotenants by the language of the deed saying the “Heirs of Henry Herbert”.Herbert, 74 N.C. App. at 522. Stark on the other hand is only certain that Anton Vanko isdeceased and knows nothing of the cotenant Ivan Vanko. Therefore in this situation, paying taxeson the land would not create the assumption of acknowledgment of a cotenant. Stark did not acknowledge the rights of Vanko to the mountain property. Although heknew of the possibility of Vanko being a cotenant, he never made an active acknowledgment ofVanko’s rights Therefore he would meet that necessary portion of the general rule forconstructive ouster. Stark would not meet the twenty year statute of limitations that is set for constructiveouster of a cotenant. North Carolina law dictates that one must be in sole possession and use ofthe land for the twenty year statute of limitations to find constructive ouster of a cotenant.Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906). Casstevens v. Casstevens, 63 N.C.App.169 (1983). Common law in North Carolina sets forth that a person must enter and use the propertyfor a minimum of twenty years in order to claim it as adverse against a cotenant. Further duringthe twenty years the cotenant must not interrupt the possession or use of the land or make claim
10 Cameron Waddellfor rents or profits from the land. Dobbins, N.C. 210 at 214., Courts have found that it isnecessary for one to use the land in order to show possession and use of the property. Collier v.Welker, 19 N.C. App. 617, 621 (N.C. Ct. App. 1973). Collier showed that possession was foundwhere disputed land was farmed and improvements to the land were made. Thus the law showsthat both possession and use are required during the twenty year period. Collier, 19 N.C. App. at621. Stark’s share of the property was conveyed to him upon the death of his father in 1985.However Stark took possession and use in 1991 when he began paying property tax on the landand placed a luxury camper on the property. Like the Collier case where possession and use isfound by farming and gaining profit from the land the same is true in Stark’s case. Collier, 19N.C. App. at 621. Stark’s use would begin in 1991 when he entered and began makingimprovements on the land and it continued through 2010 for a total of nineteen years. Stark would be one year short of the twenty years necessary to create a constructiveouster of a cotenant. Although he was deeded the property in 1985, he never entered or used theproperty until 1991, so that would begin the statute of limitations for constructive ouster andStark is one year short of the twenty years set forth in the statute of limitations. A counter argument may be made for Stark’s entry and use of the property as related tothe twenty years statute of limitation. One could argue that in either 1985 when the deed wasconveyed to him at his father’s death or when he took interest in the property in 1989 that itconstituted possession which would be possession for twenty one or twenty five yearsrespectively. However, common law principals as found in Casstevens state that along with
11 Cameron Waddellpossession, one must also use the property. Casstevens v. Casstevens, 63 N.C.App. 169 (1983).Stark’s use of the property did not begin until 1991 when he put a luxury camper on the property. Conclusion Tony Stark would not have a claim of adverse possession against Ivan Vanko because hefails to meet the requirements of either actual ouster or constructive ouster. Stark only hadcontinuous possession for nineteen years, one short of the twenty necessary for constructiveouster of a cotenant. Stark also fails to prove that he acted in a way that denied Vanko hisproperty rights, thus there is no actual ouster.