Yesterday, the Court of Appeals of Virginia issued an important decision regarding two often troubling elements under Virginia law regarding proving a claim of adverse possession. In Anne P. Everett v. George Lee Parson, et al., the Court held that (1) a claim of adverse possession is not negated merely because the person possessing the land did so under a mistaken belief, and (2) addressed issues regarding adverse possession among co-tenants.
The relevant facts are as follows:
In 1941, George Parson, Senior, acquired a large farm consisting of three parcels in Sussex County. Two of the parcels, together, constituted the Everett Farm. George Parson, Junior, acquired the Everett Farm under Senior’s will. Junior and his wife (the “Parsons”) entered into 13 mining leases with RGC (USA) Minerals Inc. (“RGC”) from 1989 to 1990. Ten of these leases authorized RGC to extract minerals from parcels the Parsons wholly owned, including the Everett Farm. The remaining leases authorized RGC to extract minerals from land Junior jointly owned with his four sisters. RGC later assigned its interests in the leases to Iluka Resources Inc. (“Iluka”).
From at least August 1990, Junior’s sisters had knowledge that the Parsons had executed the mining leases and that Junior considered himself the sole owner of Everett Farm. Beginning in August 1990, the husband of Junior’s daughter, Anne Everett (“Anne Everett”), began farming on Everett Farm with Junior’s consent. His farming operations were visible from two public roads. In 1994, by deed of gift (the “1994 Deed”), the Parsons conveyed Everett Farm to Anne Everett. Anne Everett’s husband continued farming on the land with the consent of his wife, Anne Everett, until spring 2007.
In October 2006, the Parsons had assigned their rights and obligations under the mining leases to Anne Everett. In spring 2007, with Anne Everett’s consent, Iluka took possession of Everett Farm and began mining operations. The mining operations were visible, exclusive, and continuous until at least the end of 2010.
In June 2012, the appellees (the “Relatives”) filed an amended complaint against Iluka, alleging trespass, waste, and breach of contract. They alleged that Senior’s will did not convey the entire Everett Farm to Junior, but rather a triangular part of Everett Farm (the “Triangle”) passed to Senior’s wife (“Virgie”) under the residuary clause of Senior’s will. As Virgie’s descendants, the Relatives claimed joint ownership of the Triangle through the residuary clause of Virgie’s will. The Relatives thus alleged Iluka mined the Triangle without the consent of all its owners.
Thereafter, in 2022, Anne Everett filed a complaint to quiet title against the Relatives and, later, Anne Everett filed an amended complaint. She claimed that she acquired title to Everett Farm, including the Triangle, through adverse possession based on her and Junior’s actions. The Relatives demurred to Anne Everett’s amended complaint, arguing that the amended complaint failed to state a claim for adverse possession because (1) it demonstrated Anne Everett took possession of the Triangle under the mistaken belief that the 1994 Deed had conveyed it to her and (2) the Relatives owned the Triangle with Anne Everett as co-tenants and Anne Everett failed to plead that she had ousted them. The circuit court sustained the Relatives’ demurrer. The court held that because Anne Everett’s possession of the Triangle was under the mistaken belief that it was conveyed to her by deed, the possession could not, as a matter of law, result in adverse possession. Further, the trial court found that Anne Everett was a co-tenant in privity with the Relatives and because she failed to allege conduct that ousted the Relatives, she failed to state a claim for adverse possession.
On Anne Everett’s appeal, the Court of Appeals reversed the circuit court’s judgment. The Court noted that, to establish title by adverse possession, a claimant must prove actual, hostile, exclusive, visible, and continuous possession, under a claim of right for the statutory period of 15 years. Specifically, for hostile possession, “the possessor must profess, through words or actions, a belief that [s]he is entitled to use the land and prevent others from using it in a manner that precludes the legal owner from exercising his rights over the property.” Quantannens v. Tyrrell, 268 Va. 360, 372 (2004). The Court held that while mistake may negate hostile possession in narrow circumstances, where a party has a definite and positive intention to occupy the land, the hostile character of the possession is not undercut by a mistaken belief that the land was hers. Anne Everett’s amended complaint alleged that she believed she had title to Everett Farm, including the Triangle, and she exclusively possessed the farm while using it for visible operations between 1994 and 2010. Thus, the Court held Anne Everett’s alleged actions demonstrated that she had the “definite and positive intention to occupy, use and claim as [her] own the land up to a particular and definite line on the ground,” specifically the Triangle. Id. at 367 (internal citation omitted). The Court therefore held that because Anne Everett’s amended complaint alleged all elements of adverse possession, her mistaken belief concerning the 1994 Deed did not defeat the hostile element of her claim.
The Relatives relied on Chaney v. Haynes, 250 Va. 155 (1995), which held that “[u]se of property, under the mistaken belief of a recorded right, cannot be adverse as long as such mistake continues.” However, the Court distinguished the case from Chaney by explaining that Anne Everett’s claim to the Triangle was based not only on the description in the 1994 Deed, but also on her belief that Everett’s Farm property line included the Triangle. The Court noted that these facts are more similar to those in Hollander v. World Mission Church, 255 Va. 440 (1998), in which the claim was based on mistaken beliefs of both (a) deed descriptions and (b) where the property line lay. Thus, the Court applied the “practical test” articulated in Hollander, which asks “[w]hether the positive and definite intention to claim as one’s own the land up to a particular and definite line on the ground existed.” Id. at 443 (emphasis in original). The Court found that Anne Everett’s visible and continuous farming and mining operations on Everett Farm demonstrated Anne Everett’s intention to claim the land including the “line[s] on the ground” forming the Triangle, as her own. Therefore, the Court held Anne Everett’s possession had the requisite hostile intent, despite her mistaken belief regarding the 1994 Deed, meaning the circuit court erred in ruling Anne Everett’s amended complaint failed to state a claim for adverse possession as a matter of law.
Anne Everett also argued the circuit court erred in sustaining the demurrer based on the amended complaint’s failure to allege specific conduct by Anne Everett, as a co-tenant in privity with the Relatives, necessary to oust her co-tenants. The Court noted the rule one co-tenant may not rely on adverse possession unless notice was given to the other co-tenant of the intent to oust, thereby making the occupying co-tenant’s possession hostile. However, the Court held that Anne Everett’s amended complaint never alleged that she and the Relatives owned the Triangle as co-tenants in the first place. It alleged that Anne Everett received her “fee simple” interest from Junior under the 1994 Deed, or alternatively, by adverse possession. There were no allegations that Anne Everett shared her interest with any of the Relatives. Anne Everett’s acknowledgement in the amended complaint that the Relatives had alleged in their separate action against Iluka that they possess an ownership interest in the Triangle was not an independent allegation by Anne Everett. Accordingly, significantly, the Court held that because Anne Everett did not allege that another party actually had an ownership interest in the Triangle, the circuit court erred in finding the amended complaint failed to state a claim for adverse possession because Anne Everett did not allege that she had ousted her co-tenants.
