Robert M. Coggeshall et al. v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

The plaintiffs have filed an adverse possession action with regard to certain property identified in the complaint.   The defendant, Fitch Homestead, LLC, now moves to strike the complaint and alleges that the complaint is legally insufficient in that it does not allege that the plaintiffs' possession of the subject property was hostile and exclusive.

In paragraph six of the complaint, the plaintiffs allege that they and their predecessors used the property in question in “an open and undisturbed notorious and continuous fashion.”   The resolution of this motion requires the court to determine these allegations are sufficient to establish and allege a legally sufficient claim for adverse possession.

“To establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years of open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without consent of the owner.”   Skelly v. Bucher, 134 Conn.App. 337, 340 (2012).

A review of case law makes clear that a claim of adverse possession must be exclusive and it must be hostile.

“The use is not exclusive if the adverse user merely shares dominion over the property with other users.”  Woycik v. Woycik, 13 Conn.App. 518, 520 (1988).   In Mulle v. McCauley, 102 Conn.App. 803, there is an extensive discussion of the requirement of a claim of hostility in order to support a claim of adverse possession.  “Hostile possession can be understood as possession that is imposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own.”  Mulle v. McCauley, at 814, citing 16 R. Powell, Real Property (2005) Section 91.05.

In this case, the court finds that the complaint as pled is not legally sufficient in that it does not address the related concepts of exclusiveness and hostility.   The allegation that the plaintiffs use has been “open and undisturbed notorious and continuous” represent some of the allegations of a legally sufficient adverse possession claim.   They do not however allege that the use of the property has been hostile to the owner of the fee title nor that the plaintiffs have excluded the owner of the fee from use of the property.   For these reasons, the motion to strike is sustained.

Cosgrove, J.

Cosgrove, Emmet L., J.