Thursday Август 17, 2017 17:23
Yes, an AOP should cut off hostile adverse possession claims, provided 1) the record title holder files the AOP, and 2) the record title holder himself has held title for more than ten years. *Garrett v. Huster, 684 N.W.2d 250 (Iowa 2004): "III. Section 614.17A Bar. "Section 614.17A(1) provides: 1. After July 1, 1992, an action shall not be maintained in a court, either at law or in equity, in order to recover or establish an interest in or claim to real estate if all the following conditions are satisfied: a. The action is based upon a claim arising more than ten years earlier or existing for more than ten years. b. The action is against the holder of the record title to the real estate in possession. c. The holder of the record title to the real estate in possession and the holder's immediate or remote grantors are shown by the record to have held chain of title to the real estate for more than ten years. "Id. � 614.17A(1). Section 614.17 states that for purposes of section 614.17A, possession may be shown of record by an affidavit of possession filed with the county recorder. . "Even though Huster claims to have been in possession of the property after 1995, he only had record title to his interests in the land, not to Garrett's interests. Therefore, he did not hold record title to the disputed interests for more than ten years and consequently cannot rely on section 614.17A(1) to extinguish Garrett's interests in the subject real estate." *Clymer v. Shawd, 741 N.W.2d 823 (Iowa App. 2007)(Table): "Under Iowa Code section 614.17A, an affidavit of possession may be filed, which will bar other claims to the property, but the affidavit of possession must be filed by the record titleholder who is in actual possession of the property. Iowa Code � 614.17 (2007); see Garrett, 684 N.W.2d at 254-55 (stating that under section 614.17 a person must hold record title for more than ten years in order for an affidavit of possession to extinguish other claims)." *Sorensen v. Knott, 320 N.W.2d 645�(Iowa 1982): " “In order to comply with the Iowa statute and to make possible a reliance upon it the required affidavit must be filed by the owner in possession.” Tesdell v. Hanes, 248 Iowa 742, 747, 82 N.W.2d 119, 122 (1957). See also Marksbury v. State, 322 N.W.2d 281�(Iowa 1982). *Schroeder v. Buegel, 371 N.W.2d 178�(Iowa App. 1985): "In order to comply with the statute the holder of record title must be in possession of the property. Tesdell v. Hanes, 248 Iowa 742, 747, 82 N.W.2d 119, 122 (1957); Sorenson v. Knott, 320 N.W.2d 645, 648 (Iowa Ct.App.1982). Possession may be made a matter of record by the filing of an affidavit of possession. There need not be any continuity of possession for the holder of record title so long as he or she is actually in possession at the time the affidavit is filed. Lane v. Travelers Insurance Co., 230 Iowa 973, 977, 299 N.W. 553, 555 (1941); Iowa Land Title Examination Standard 10.1. "The effect of section 614.17 upon the doctrines of adverse possession and acquiescence in boundary lines has not been thoroughly explored. Plaintiffs argue that the statutory limitation on actions should not be construed to include those claims. Defendants cite Iowa Land Title Examination Standard 10.1 which takes the position that all claims except those of the State or United States are covered by the statute. Two authors have concluded that section 614.17 does limit the doctrine of adverse possession. 2 Drake L.Rev. 76, 81 (1952); 17 Iowa L.Rev. 520, 522 (1932). Under this view an adverse possessor whose claim arose prior to January 1, 1970, who did not preserve the claim as prescribed by the statute would be prevented from asserting it if the holder of record title managed to regain possession of the property even for one day." David Hanson Hofmeyer & Hanson PC Fayette, Iowa ----- Original Message ----- From: "Brad Nelson" To: realestate@iabar.org Sent: Thursday, August 17, 2017 3:27:18 PM Subject: [ISBA RealEstate] Affidavit of Possession Does an affidavit of possession cut off an adverse possession claim? Bradley J. Nelson Norelius [leaf 2] Nelson Law Firm 1317 Broadway P.O. Box 278 Denison, IA 51442 Ph. 1-712-263-4245 Fax 1-712-263-8773 bnelson@denisonlawyers.commailto:bnelson@denisonlawyers.com> Norelius Nelson Notice: This E-mail (including any attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. ��2510-2521, is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender that you have received the message in error, then delete it. Thank you.