Probate law is often intertwined with real-estate law. In fact, many people learn of the need for probate only when they get ready to deal with a piece of family property and discover an unprobated estate in the chain of title (for more information, see our Section on Probate & Real Estate or, for a good example of how this can come up, see the recent case of Tatum v. Wells)
One of the real-estate-related issues that can surface in a probate proceeding is called adverse possession. Adverse possession is a function of the law that allows a person to acquire title to another person’s land by maintaining possession of the land for a continuous period of 10 years or more.
Mere possession will not meet the standard set for receiving title by adverse possession. In order for a court to find adverse possession, the possessor must prove that the possession is 1) under claim of right; 2) actual or hostile; 3) open, notorious, and visible; 4) exclusive; 5) continuous and uninterrupted for 10 years; and 6) peaceful.[1] The person seeking the title to the land must also show by clear and convincing evidence that each element has been met.
Clear and convincing evidence is the highest standard for proving your case that the court has. It is defined as a showing of evidence that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. It is evidence so clear, direct, weighty and convincing that the fact finder comes to a clear conviction, without hesitancy, of the truth of the precise facts of the case.[2]
Tomorrow, we will see how this plays out in a recent Mississippi case involving adverse possession.
[1] Stallings v. Bailey, 558 So. 2d 858, 860 (Miss. 1990).
[2] Moran v. Fairley, 919 So. 2d 969, 975 (¶24) (Miss. Ct. App. 2005).
[…] Unfortunately for Dean, the Jackson County probate judge didn’t buy it. She held that, as a matter of record title, Slade had a one-third interest, Jan (Dean’s mother) had a one-third interest, and Jackson and Ragan each had a one-sixth interest. But record title doesn’t always equal actual title. Dean claimed that, even if he wasn’t the owner by record title, he had obtained title to the property through Mississippi adverse possession. […]