Adverse Possession Must Be. . .Drum Roll Please. . .Adverse

In a recent case, In re Estate of Cargola, 2017 IL App (1st) 151823 (February 17, 2017) Cook Co., 6th Div., the appellate court determined, not surprisingly, that adverse possession must in fact be adverse.

According to the appellant, the roots of the case lay in her messy divorce back in 1991. At the time she wanted to purchase a house, but she was afraid her husband would try to claim it. So she recruited her mother to purchase it for her. According to the appellant, she paid or reimbursed her mother for all costs associated with the purchase. Her mother took the mortgage, but appellant made the payments. Appellant also paid all other costs of ownership – utilities, maintenance, taxes, etc.

Eventually, appellant’s mother refinanced the house, adding appellant’s name to the note and mortgage documents. According to the appellant, both she and her mother believed that by adding appellant’s name to the note and mortgage, appellant became a co-owner. In fact, appellant had only become a co-signer.

In 2007, the appellant’s mother passed away; she left no will. Appellant sought to quiet title in the house. Among other things, she claimed adverse possession, stating that she had lived at the house in question for more than twenty years, and her mother had never actually given her permission to live there. The court disagreed, and the matter was eventually appealed.

When rejecting appellant’s appeal, the appellate court cited General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439, 441 (1997), which stated that the party claiming adverse possession must prove that his or her possession was: “(1) continuous; (2) hostile or adverse; (3) actual; (4) open, notorious and exclusive; and (5) under a claim of title inconsistent with that of the true owner.” Bottom line, it comes down to this: Whether or not the appellant’s possession was hostile or adverse over the years is not relevant, because she had permission when she first moved in, as evidenced by her arrangement with her mother. According to the court, “permission to use land can never ripen into a claim for adverse possession.” Moreover, the court pointed out that after her divorce proceedings were finalized, the appellant had plenty of time to transfer title into her own name. Also, appellant refinanced with her mother – that in and of itself is an acknowledgement that her mother was on the title of the property, and that the property did not belong to appellant.

So what do we learn from this?

  1. I hate to state the obvious, but let’s just get it out there – to claim adverse possession and win, the possession must truly be adverse.
  2. There are plenty of people out there who buy houses in other people’s name for any number of reasons – poor credit, family disputes, divorces, hiding assets from creditors, legal status – whatever it may be. It happens all the time. Just remember, if you buy something in someone else’s name, it could really come back to bite you.
  3. Lastly, all of this could have been avoided if the property owner had a will. If the appellant’s mother had really intended for the home to belong to appellant, she could have just written it in a will or some other testamentary document. Had she not died intestate, this matter may have been cleared up with much less hassle.