In a recent opinion, the Virginia Supreme Court held that in some instances a co-tenant may acquire fee simple title to real estate through adverse possession without notice of ouster to the other co-tenants. At issue in Harkleroad v. Linkous was title to real property in Bristol, Virginia.
Title was originally vested in Pauline J. Smith and her husband, David H. Smith as tenants in common. By will, David conveyed his one-half interest in the property to Louise Hensley and Kathy Telley Poore, subject to a life estate in favor of Pauline Smith. Louise Henley later died leaving her interest to Shannon Harkleroad and David Rhea. David Rhea passed away leaving his interest in the property to Connie Rhea.
Therefore, Kathy Poore had a 25% ownership in the property and Shannon Harkleroad and Connie Rhea each had a 12.5% ownership interest in the property.
In 1982 Pauline Smith conveyed her one-half interest to D.H. Frackelton. In 1991, The IRS sold Frackelton’s interest in the property at a public sale to Theodore K. Linkous and Mary H. Linkous. The Linkouses admitted that they never obtained a title search when they bought the property. The Linkouses took possession of the property, made renovations, paid the taxes on the property and rented it out until 2007. In 2007 the Linkouses fee simple title to the property was questioned by prospective purchasers.
The Linkouses filed a suit to quiet title claiming that, pursuant to Virginia Code Section 8.01-236, they had acquired fee simple title to the property through adverse possession because they were in actual, hostile, exclusive, visible and continuous possession of the property for 15 years.
The respondents, co-tenants of the property, contended that the Linkouses possession could not have been hostile because the Linkouses were unaware that they only had a one-half interest in the property.
The Court acknowledged that “when two parties acquire property as co-tenants, one co-tenant may not rely on adverse possession to obtain exclusive fee simple title to the property unless notice, actual or constructive, is given to the other co-tenant of the intent to oust, thus making the occupying co-tenant’s possession hostile.”
Still, the Court noted “this presumption does not apply when, as here, a stranger to the original co-tenancy takes possession of the property through a conveyance that on its face purports to give the new co-tenant the right to possess the whole property and he claims ownership of the whole.” Because the new co-tenants are not in privity with the other co-tenants, when the new co-tenant enters into exclusive possession of the land and claims title to the whole, he may rely on adverse possession to acquire title.
Thus, in Virginia, where a co-tenant is a stranger to the original co-tenancy, he may acquire fee simple title to the property through adverse possession without ousting the other co-tenants from the property (either by actually ousting them or by giving them notice of an intent to exclude them from the property) when he does not have actual knowledge that he is not the sole owner of the property and claims ownership to the whole property.
Because the Respondents never alleged that Pauline Smith died sometime after 1991, the Court noted that it was left to assume that the parties agreed that the 15 year period for adverse possession to run began in 1991, and that the possibility that Pauline Smith’s life estate prevented the full 15 year period from running was not relevant to this case.
The circumstances under which a claim to title through adverse possession by a co-tenant will arise are most certainly limited. To begin with, most purchasers will obtain a title search prior to buying property. Had the Linkouses obtained a title search prior to purchasing the property from the IRS, they most likely would have never become owners of the property. If nothing else, this case again stresses the importance and necessity of obtaining a title report prior to purchasing real estate.
Second, in the normal case in which there are several owners of real estate that has been passed down through several generations, none of the owners actually live on the land. In that instance, a partition suit will most likely be necessary to sell the land and stop the payment of taxes by one of the owners.
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