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To: Supervising Attorney
From: Cameron Waddell
RE: Stark Adverse. Possession Claim
Question Presented
In North Carolina, will one have an adverse possession claim against a cotenant, when a
person owns real property as a cotenant with another and that person maintains sole possession
of the property for 19 years, while building a resort on said property, without the cotenant’s
knowledge or permission?
Brief Answer
No, in North Carolina one must show either constructive or actual ouster of a cotenant in
order to have a valid claim of adverse possession against that cotenant. Because the statute of
limitations has not been met for constructive ouster, it will not apply. Further because there is no
evidence of an action that denies the cotenant’s right to the property, actual ouster will not be
found. Having neither constructive nor actual ouster of the cotenant, the claim of adverse
possession would be unsuccessful.
Over Arching Conclusion and Rule
Tony Stark will be unsuccessful in an adverse possession action against Ivan Vanko, over
the mountain property, because Stark fails to meet either actual or constructive ouster of a
cotenant. North Carolina law has set forth that, “As between tenants in common, adverse
possession is governed by its own set of rules.” McCann v. Travis, 63 N.C. App. 447, 305 S.E.2d
197, 1983 N.C. App. LEXIS 3118 (1983). Courts have found that in cases of adverse possession
against a cotenant, one must have actual ouster, which is when there is, “…an entry or
possession of one tenant in common which may amount to an actual ouster…but it must be by
some clear, positive, and unequivocal act equivalent to an open denial of his right and to putting
him out of the seizin.” Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906). In cases where
actual ouster does not exist, the court may consider constructive ouster when , “…one tenant in
common and those under who he claims have been in sole and undisturbed possession and use of
the land for twenty years when there had been no demand for rents, profits or possession.”
Casstevens v. Casstevens, 63 N.C.App. 169 (1983). Generally, adverse possession against a cotenant is

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when a tenant takes sole possession of property by either constructive or actual ouster of a cotenant.
Dobbins, 141 N.C. at 214.
Discussion
Stark and Vanko are cotenants of the contested land because it was conveyed to each of
them by their respective father’s. Stark’s possession also qualifies as possession for Vanko.
North Carolina common law has set forth that cotenants hold title to the property through
separate titles, but that the possession of one cotenant qualifies as possession for all other
cotenants. Dobbins, 141 N.C. 210.
Having found that the possession of one cotenant is good as possession for all cotenants,
the court has set forth a separate standard for adverse possession in these cases, requiring one to
prove ouster of the other cotenant. Dobbins, N.C. 210 at 214. In Dobbins, the court held that in a
circumstance where there is a dispute among heirs whom are cotenants, the standard of adverse
possession will be the rule of cotenants rather than the general rule.
Stark acquired his share in the property via a will left by his father Howard Stark. Vanko
acquired his claim to the land by intestate succession from his father Anton Vanko. This situation
parallels with the holding of the Dobbins court in that, two heirs of property are cotenants and
are thus subject to the common law requirements for adverse possession of cotenants. Dobbins,
N.C. 210 at 214. Thus the standard for Stark’s claim of adverse possession against Vanko’s
property right would be adverse possession regarding a cotenant as opposed to the general law
regarding adverse possession.

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Stark and Vanko are cotenants. Each holds an individual title to the land and Stark’s
possession of the land would qualify as possession for Vanko. Therefore the common law
principals of adverse possession in co tenancy would apply.
Actual Ouster
Starks possession of the land would not qualify as actual ouster because there is no
evidence that Stark acted in a hostile way towards Vanko’s right to the property. North Carolina
common law states that actual ouster in a cotenancy must be made by one cotenant to the other.
However it must be brought by “an unequivocal act equivalent to an open denial of his right and
to putting him out of the seizin.” Dobbins, N.C. 210 at 214. Therefore in order to prove actual
ouster, one must show evidence of an act that is hostile and denies the cotenant the right to use
and possess the property. Elementally, actual ouster looks like this, 1) Entrance or possession by
one tenant that is clear, positive and hostile 2) that denies the cotenant the right or use of the
property and puts the cotenant out of seizin. Dobbins, N.C. 210 at 214.
Stark’s possession of the land was not clear, positive and hostile towards Vanko. North
Carolina common law has set forth a standard that requires one to show an action which in all
regards is hostile towards the cotenant in order to find actual ouster. Therefore to show actual
ouster of a cotenant one must possess the land in a way that is open and clearly hostile towards
that cotenant. Willis v. Mann, 96 N.C. App. 450 (N.C. Ct. App. 1989).
In Willis, the court set forth that cutting timber on land that was claimed by the defendant,
was sufficient evidence of open and hostile possession. Willis, 96 N.C. App. 450 at 454. Also the
Willis case mentions that a mobile home was placed on the land that was disputed. Thus courts in

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North Carolina have found that cutting timber or harvesting the resources of disputed land or
placing a structure on land claimed by the cotenant is sufficient evidence of open and hostile
possession. Willis, 96 N.C. App. 450 at 454.
Starks case is somewhat similar to the situations presented in Willis. In Willis the court
found that the placing of a mobile home against the wishes of a cotenant would be considered
evidence of open and hostile possession against the cotenant. Willis, 96 N.C. App. 450 at 454.
Stark has erected a resort on the mountain property including a lodge which he publically
promotes as a Tony Stark Project. The action of building a resort on the property without notice
to a cotenant would qualify as a clear and hostile action against that cotenant. Stark’s actions
would be clear and hostile if Vanko had objected to Stark’s improvements, requested profits or
otherwise made a claim. Given the facts, Stark’s case is not like Willis because at no point did
Vanko acknowledge the behavior as hostile or raise a claim for the property. Further, Stark never
made it clear that his claim was intended to be construed as hostile towards Vanko. A key
element in the Willis case was that the cotenant identified that the land was under dispute and
objected to the action taken. Willis, 96 N.C. App. 450 at 454. Here, Stark made no
communication with Vanko regarding the property and it is unclear as to whether Vanko even
knows about his right to the property.
Stark would be unable to show an entrance or possession that is clear, positive and hostile
because his actions were not clearly hostile to Vanko’s property rights. Since Vanko never
entered the land himself or disputed the efforts of Stark it could not be seen as an action adverse
to Vanko. Thus Stark would unable to claim an entrance or possession that is hostile towards
Vanko.

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Denial of the cotenants legal rights to the property is also necessary to make a claim for
actual ouster. North Carolina common law notes that one must, act in a way that denies the
cotenant the right or use of the property and puts the cotenant out of seizin. Dobbins, N.C. 210 at
214. Thus an action must prevent or interrupt the legal property rights of the cotenant to meet the
standard set forth for actual ouster. Dobbins, N.C. 210 at 214.
The Willis case provides an example of what North Carolina courts have found to be
evidence of denying a cotenant their property rights. In Willis the cotenant is not permitted to cut
timber on the property in question. Willis, 96 N.C. App. 450 at 454. Thus it can be said that the
active denial of the right to use or modify the property would satisfy the denial of property rights
necessary for actual ouster. Willis, 96 N.C. App. 450 at 454.
The case for Stark differs from Willis because Vanko has never made a claim to the
property. In order to deny or interrupt Vanko’s property rights, Stark must have acted in a way
that prevented his use of the property or denied Vanko access to the land. In Willis the cotenant
is prevented from cutting timber. Willis, 96 N.C. App. 450 at 454. Vanko has yet to make a
claim, attempted to enjoy or bring profit from the mountain land in question. Therefore based on
the ruling of Willis, Stark has not acted in a way that denied or lessened the property rights of
Vanko.
The actions of Stark were not clear, positive and hostile to Vanko’s property rights. Stark
never demonstrated a denial or interruption of the right Vanko has to the property. Therefore he
would not meet that element of actual ouster.

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Stark would not a have a claim for actual ouster in a manner adverse towards Vanko.
Stark does not demonstrate that he has sole possession of the land in a way that is clear and
hostile towards Vanko. Further, Stark does not demonstrate that his actions were set forth in a
way that would deny or prevent Vanko from exercising his right to the property.
Constructive Ouster
A claim for Stark regarding constructive ouster would fail because his possession and use
of the property does not meet the requisite twenty years to pass the statute of limitations for
constructive ouster of a cotenant. Courts in North Carolina have set forth that constructive ouster,
which creates a presumption of actual ouster, is made when a tenant maintains sole possession
and use of the property without the other cotenant making a claim and without any
acknowledgement of the cotenants right for the statutorily set twenty years. Constructive ouster
occurs when, a tenant who, 1) maintains sole possession and use without a claim being made by
cotenant, 2) and without any acknowledgment of the cotenants right 3) for the statutorily set
twenty years. Rhea v. Craig, 141 N.C. 602 (N.C. 1906). Casstevens v. Casstevens, 63 N.C.App.
169 (1983). Young v. Young, 43 N.C. App. 419 (1979).
Stark does maintain sole possession and use of the property without a claim being made
by Vanko, so he would meet that requirement for constructive ouster. The rule in North Carolina
states that a tenant must maintain sole possession and use of the property and that no claim of
right is made by the cotenant. Rhea v. Craig, 141 N.C. 602 (N.C. 1906). Casstevens v.
Casstevens, 63 N.C.App. 169 (1983).
Courts in North Carolina have found constructive ouster where deeded property was split
up, and when the tenant possessed and cultivated the land, it did constitute possession as long as

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no claim for profits or rent is made by the cotenant. Rhea, 141 N.C. 602 at 611. Rhea finds that,
taking possession along with entry and improvement to the land in a public manner is sufficient
for sole possession so long as no claim is made by the cotenant. Further courts have ruled that
when a tenant and those to whom he conveys the property, rent, farm and otherwise collect
profits, this will qualify as use and possession of the land. Collier v. Welker, 19 N.C. App. 617
(N.C. Ct. App. 1973).
Stark entered into the mountain land in 1991, he began paying property taxes and had a
luxury camper installed on the property. Later on in 1993 Stark transformed the property into a
resort he named The Lodge. Stark’s development of the land is similar to Collier, where a house
was rented for profit and that constituted sole possession and use of the property. Collier, 19
N.C. App. at 617. Stark transformed the vacant mountain land into a resort with which Stark
made a significant profit. As the Rhea court set forth, one must not only possess and use the
property but it must be done without a claim to profits or rights by a cotenant. Rhea, 141 N.C. at
602. Vanko proposed a meeting with Stark to discuss common interests but he made no request
for profits or attempted to assert his right to the property. The mountain land or Vanko’s rights to
it have yet to be mentioned by either party.
Stark has been in sole possession of the mountain land, used it for his profit and done so
without a claim being made by Vanko for profits or rights to the land. Therefore he would meet
the standard for sole possession and use without a claim of right by a cotenant, in regards to
constructive ouster of a cotenant.
Stark never acknowledged Vanko’s right to the property and thus his claim would be
successful in that aspect of constructive ouster. North Carolina law has stated that in order for

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one to make a successful claim of constructive ouster, one must not acknowledge the property
rights of a cotenant. Woodlief v. Woodlief, 136 N.C. 137 (N.C. 1904). Woodlief asserts that one
must possess the property without acknowledging the right of another cotenant in order to find
constructive ouster.
North Carolina courts have found the acknowledgement of the property rights of a tenant
when property taxes were paid on the under a jointed name. Herbert v. Babson, 74 N.C. App.
519, 522 (N.C. Ct. App. 1985). In Herbert, the court found that where property taxes were paid
under the name “Heirs of Henry Herbert", all cotenants were included, this was adequate
acknowledgment of a cotenant’s property rights. Herbert, 74 N.C. App. at 522. Further common
law has shown that conveyance of land indicates a lack of acknowledgment of a cotenants right
to the property. Ellis v. Poe, 73 N.C. App. 448 (N.C. Ct. App. 1985). In Ellis the court held that
one must show proof of an “express or active acknowledgment of a cotenancy by the possessor”.
Ellis, 73 N.C. App. at 451.
Upon the initial investigation launched by Stark regarding the mountain property, Potts
discovered the property had been conveyed to both his father Howard Stark and Anton Vanko.
Anton Vanko was recently deceased but it was possible that he had a son, however no substantial
proof could be found at the time. Given the standard set forth in Ellis, and the fact that Stark had
no idea if Vanko existed or not he could not express or acknowledge the existence of Vanko as a
cotenant. Ellis, 73 N.C. App. at 451. Also a local businessman who knew Grandpa Stark
mentions Vanko and asks if he is involved, Stark simply denies his involvement in the project.
Although this would give credence to the existence of Vanko, Stark never acknowledges his
right to the property in an “active or express” way as the Ellis court necessitates. Ellis, 73 N.C.

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App. at 451. However the issue raised by Herbert, is in some ways similar Stark’s claim. In
Herbert an acknowledgment of a cotenant is found where taxes are paid on a deed that is listed
as belonging to a set of heirs. Herbert, 74 N.C. App. at 522. Stark began paying property taxes
out of his own personal account in 1991. Given that the property was conveyed to Anton Vanko
and Howard Stark equally that creates the possibility that an heir to Anton Vanko’s right exists.
The distinction between the two cases is that in Herbert the heirs are known and a conveyance is
given to all the cotenants by the language of the deed saying the “Heirs of Henry Herbert”.
Herbert, 74 N.C. App. at 522. Stark on the other hand is only certain that Anton Vanko is
deceased and knows nothing of the cotenant Ivan Vanko. Therefore in this situation, paying taxes
on the land would not create the assumption of acknowledgment of a cotenant.
Stark did not acknowledge the rights of Vanko to the mountain property. Although he
knew of the possibility of Vanko being a cotenant, he never made an active acknowledgment of
Vanko’s rights Therefore he would meet that necessary portion of the general rule for
constructive ouster.
Stark would not meet the twenty year statute of limitations that is set for constructive
ouster of a cotenant. North Carolina law dictates that one must be in sole possession and use of
the land for the twenty year statute of limitations to find constructive ouster of a cotenant.
Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870 (1906). Casstevens v. Casstevens, 63 N.C.App.
169 (1983).
Common law in North Carolina sets forth that a person must enter and use the property
for a minimum of twenty years in order to claim it as adverse against a cotenant. Further during
the twenty years the cotenant must not interrupt the possession or use of the land or make claim

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for rents or profits from the land. Dobbins, N.C. 210 at 214., Courts have found that it is
necessary for one to use the land in order to show possession and use of the property. Collier v.
Welker, 19 N.C. App. 617, 621 (N.C. Ct. App. 1973). Collier showed that possession was found
where disputed land was farmed and improvements to the land were made. Thus the law shows
that both possession and use are required during the twenty year period. Collier, 19 N.C. App. at
621.
Stark’s share of the property was conveyed to him upon the death of his father in 1985.
However Stark took possession and use in 1991 when he began paying property tax on the land
and placed a luxury camper on the property. Like the Collier case where possession and use is
found by farming and gaining profit from the land the same is true in Stark’s case. Collier, 19
N.C. App. at 621. Stark’s use would begin in 1991 when he entered and began making
improvements on the land and it continued through 2010 for a total of nineteen years.
Stark would be one year short of the twenty years necessary to create a constructive
ouster of a cotenant. Although he was deeded the property in 1985, he never entered or used the
property until 1991, so that would begin the statute of limitations for constructive ouster and
Stark is one year short of the twenty years set forth in the statute of limitations.
A counter argument may be made for Stark’s entry and use of the property as related to
the twenty years statute of limitation. One could argue that in either 1985 when the deed was
conveyed to him at his father’s death or when he took interest in the property in 1989 that it
constituted possession which would be possession for twenty one or twenty five years
respectively. However, common law principals as found in Casstevens state that along with

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possession, one must also use the property. Casstevens v. Casstevens, 63 N.C.App. 169 (1983).
Stark’s use of the property did not begin until 1991 when he put a luxury camper on the property.
Conclusion
Tony Stark would not have a claim of adverse possession against Ivan Vanko because he
fails to meet the requirements of either actual ouster or constructive ouster. Stark only had
continuous possession for nineteen years, one short of the twenty necessary for constructive
ouster of a cotenant. Stark also fails to prove that he acted in a way that denied Vanko his
property rights, thus there is no actual ouster.