lost-grant doctrine

lost-grant doctrine

One theory underpinning adverse possession and prescription, that one who occupies and uses property for the required period of time really had good title, or grant, at one time in the past, but the documents have been lost. (1) This is important in determining exactly when someone gains title by adverse possession.Was it from the date of first possession, at the date the statute of limitations expired,or the date of a court's order recognizing the successful adverse possession? Using the lost grant doctrine, title is effective on the date of first possession. (2) This doctrine is used to get around statutes prohibiting adverse possession against the government. Courts will say there was no adverse possession; someone must have just lost the original deed.

Example: In the case of normal adverse possession, Tootsie and Ben are adjoining property owners who are arguing over a strip of land that each claims. Ben cuts down the trees on the strip of land. Tootsie claims they were her trees and sues for damages. She claims her sur- vey is the correct one and, even if it were not, she has adversely possessed the land for 20 years and it is now her land. Ben claims his survey is the correct one. If the court rules that Ben's survey is the correct one, but Tootsie has adversely possessed the land, when did Tootsie gain title? If it was at the time of the court ruling, then Ben could not be liable for cutting the trees because they didn't belong to Tootsie at the time he cut them. But, because of the lost-grant doctrine, courts will treat the trees as if they had always belonged to Tootsie, so Ben is liable.

The Complete Real Estate Encyclopedia by Denise L. Evans, JD & O. William Evans, JD. Copyright © 2007 by The McGraw-Hill Companies, Inc.