In Dowling v. Heirs of Bond, SC20665 (October 18, 2022), the plaintiff brought a quiet title action against the defendant alleging that although the defendant had record title of the parcel of land, the plaintiff’s predecessor in title had acquired fee ownership of that parcel by adverse possession. In a counterclaim, the defendant asserted that the plaintiff slandered its title under Conn. Gen. Stat. § 47-33j. The trial court held that the plaintiff failed to establish her claim and that the defendant prevailed on its counterclaim. The plaintiff appealed. 

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In establishing a claim of adverse possession, the requirement of repudiation depends on the facts of each case

The Connecticut Supreme Court found that the trial court erred when it concluded that the plaintiff was required to establish repudiation. The repudiation doctrine only applies when the adverse possession claimant had permission to use the land for a particular purpose and only used the land for that purpose. If the claimant has permission to use the land for a particular purpose, the use of the land for another unpermitted purpose that is inconsistent with the true owner’s rights is sufficient to put the landowner on notice of a potential adverse possession claim, and repudiation is not required. In this case, the plaintiff argued that she and her predecessors in title used the parcel for purposes for which they did not have permission and that their use gave notice to the defendant of a potential adverse possession claim.

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Adverse possession claimants are required to prove subjective intent 

The Court explained that the plaintiff was required to prove that she and her predecessors in title subjectively intended to use the property as their own to establish the “under a claim of right” element of adverse possession. The trial court reasonably found that the plaintiff failed to establish actual, open, adverse occupancy and possession under a claim of right for fifteen years.

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Slander of title requires actual malice

To establish slander of title under Conn. Gen. Stat. § 47-33j, the plaintiff must prove the uttering or publication of a false statement derogatory to the plaintiff’s title, with malice, causing special damages. Actual malice requires showing that the statement was made with knowledge that it was false or with reckless disregard for the truth. In this context, acting with reckless disregard for the truth means recording a notice of claim of adverse possession despite having a high degree of awareness of probable falsity or entertaining doubts as to the truth. 

The Court found that the evidence established that the plaintiff had a weak claim of adverse possession. However, the plaintiff’s claim was based on an incorrect legal theory, namely, that a person may adversely possess land by accident. Furthermore, this theory was endorsed by her attorneys. 

Thus, the Court found that the claim was colorable in light of the plaintiff’s mistaken, but not entirely unreasonable, position that she was not required to establish the subjective intent of her predecessors in title to establish her adverse possession claim. Accordingly, the trial court incorrectly determined that the plaintiff had acted with actual malice and therefore incorrectly determined that the defendant established its counterclaim of slander of title. 

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Disposition

The Court remanded the case with direction to render judgment for the plaintiff on the defendant’s counterclaim but affirmed the judgment in all other respects.