EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 7, 2013

"Ancient" History: Court of Appeals of Kentucky Doesn't Have to Apply Ancient Documents Rule in Adverse Possession Case

Adverse possession cases are always fun, that is, unless you are the property owner whose land a squatter allegedly adversely possessed.

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

And while they say that possession is 9/10ths of the law, the recent opinion of the Court of Appeals of Kentucky in Perkins v. Howard, 2013 WL 45570 (Ky.App. 2012), reveals that fortune often doesn't favor the alleged adverse possessor.

According to the court in Howard,
The Perkinses and the Howards are owners of adjoining parcels of real property in a rural area of Lawrence County near Webbville. The Perkins property was part of a farm that had been owned by John W. Perkins, Melvin Perkins' father. Melvin and Mary Perkins acquired their tract through a deed dated September 3, 1989, and recorded in Deed Book 227, p. 551. The Howards are the undivided owners of the adjacent property, which was originally owned by Thomas Howard. After his death in 1973, his 14 children inherited the property, and they and their heirs continue to own the property jointly by the undivided whole.
The dispute in this case concerns the boundary between the two tracts. Specifically, the Perkinses claim that the boundary described in their deed and their predecessor deeds encompasses approximately 7.39 acres of the property claimed by the Howards. The Perkinses also allege that they have adversely possessed an additional 4.52 acres of the Howard property beyond the line set out in the deed descriptions.

The trial court found for the Howards, concluding, inter alia, that the Perkinses failed to establish that they satisfied the requirements for adverse possession: "To prove the elements of adverse possession, the Perkinses' possession must have been hostile, under a claim of right, actual, exclusive, continuous, open and notorious for a period of at least fifteen years."

A big part of the problem for the Perkinses at trial was the fact that the Howards introduced copies of a rental ledger that showed rental payments from the Perkinses from 1981-1984, establishing that the Perkinses' possession of the disputed property was not open and notorious. In other words, the possession was not adverse.

On appeal, the Perkninses claimed that the ledger was not properly authenticated, and the Howards responded that the ledger was an ancient document under Kentucky Rule of Evidence 901(b)(8) because it was, inter alia, at least 20 years' old. The Court of Appeals of Kentucky found that it did not resolve the issue because "[a]lthough the Perkinses cite[d] to the record where they objected to introduction of the ledger pages, they fail to articulate a sufficiently definite point of objection which was raised before the trial court."



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