345 Conn. 119
Conn.2022Background
- Dowling bought a Long Island Sound shore lot in 2006 whose eastern boundary abuts a 40‑ft right‑of‑way (the parcel). The Old Black Point Association (Old Black Point) holds record title to that parcel via quitclaim deeds from Bond heirs in the 1970s.
- The Bradley family (plaintiff’s predecessors) had long used the parcel for seawall repairs, a septic leaching field, occasional parking, planting/maintenance and a small birdbath; deeds and closing documents reserved an easement over the parcel.
- Plaintiff recorded a notice under the Marketable Title Act (MTA §47‑33f) claiming fee title by adverse possession (notice recorded Dec. 23, 2015) and brought a quiet title action; Old Black Point counterclaimed for slander of title under §47‑33j and sought fees.
- Trial court found Old Black Point held record title, concluded plaintiff failed to prove adverse possession (applying a repudiation rule), and found plaintiff’s recorded notice was made with reckless disregard for truth — awarding fees and costs to Old Black Point.
- Connecticut Supreme Court: held the repudiation doctrine was wrongly applied where the claimant used the land beyond a deeded right; nevertheless affirmed that plaintiff failed to prove adverse possession (subjective intent required and evidence insufficient); reversed slander‑of‑title finding and vacated fee award because plaintiff’s claim was legally colorable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repudiation doctrine was required where predecessors had a deeded right to pass | Repudiation not required; deeded right to pass ≠ permission that bars hostile use when claimant used parcel more extensively | Repudiation required because predecessors’ entry was permissive or by easement/license | Repudiation doctrine inapplicable here; use beyond deeded purpose can be hostile without explicit repudiation |
| Whether subjective intent to use land as one’s own is required for adverse possession | Objective acts enough; subjective belief irrelevant | Subjective intent to use property as owner is an essential element | Connecticut requires proof of subjective intent to use property as one’s own (claim of right) |
| Whether plaintiff proved adverse possession on the record | Predecessors’ long uses (seawall, septic, parking, trees, mowing, birdbath) established hostility, notice and exclusivity | Uses were permissive, customary, shared or not visible/notorious; evidence shows no intent to claim fee | Court affirmed trial court: plaintiff failed to prove adverse possession—uses were permissive or insufficiently hostile/visible and did not show requisite intent |
| Whether recording the notice was slander of title (malice/reckless disregard) and whether fees were proper | Notice was filed to protect claim under MTA and rested on counsel’s (colorable but incorrect) legal theory | Plaintiff acted with reckless disregard/actual malice knowing claim was false; fees warranted under §47‑33j | Reversed slander‑of‑title finding: counsel’s mistaken legal theory was not so irrational as to establish malice; attorney’s fee award vacated |
Key Cases Cited
- Roche v. Fairfield, 186 Conn. 490 (Conn. 1982) (elements of adverse possession; strict proof and open, notorious, exclusive, adverse possession required)
- O'Connor v. Larocque, 302 Conn. 562 (Conn. 2011) (adverse possession requires claim under a right with intent to use property as one’s own)
- Horowitz v. F. E. Spencer Co., 132 Conn. 373 (Conn. 1945) (clarifies that possessor’s intent to use land as own must be shown)
- French v. Pearce, 8 Conn. 439 (Conn. 1831) (historical statement that possession with intent to possess is key; discussed in relation to subjective intent)
- Woodhouse v. McKee, 90 Conn. App. 662 (Conn. App. 2005) (repudiation doctrine and permissive use principles)
- Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759 (Conn. App. 2006) (neighborhood custom/permits can show use was permissive rather than hostile)