N.C.P.I.—Civil 820.10

“Does the plaintiff hold title to (identify land) by adverse

possession under color of title?”2

Color of title means that the person claiming the land has a [deed]

[will] [state other document] which appears to pass title, but which does

not do so because of some legal deficiency.3 (Here identify the

instrument claimed as color of title and describe the deficiency.)

On this issue the burden of proof is on the plaintiff.4 This means

that the plaintiff must prove, by the greater weight of the evidence, four

things:

First, that (identify land) described in the [deed] [will] [identify

other instrument] was actually possessed5 by the plaintiff (and those

through whom the plaintiff claims).6 Actual possession means physical

possession, control and use of the land as if it were one's own property.7

Actual possession includes any use that the land's size, character,

nature, location and circumstances would permit.8 A mere intention to

claim the land is not enough. If the plaintiff is in actual possession of

some part of the land described in the [deed] [will] [identify other

instrument], the law presumes that person has possession of all it.9

Second, that this actual possession was exclusive and hostile 10 to

the defendant (and those through whom the defendant claims).

Possession is hostile when it is without permission and is of such a

nature as to give notice that the exclusive right to the land is claimed.

“Hostile” does not require a showing of heated controversy, animosity or

ill will, or that the persons involved were enemies or even knew each

other.11 (If the possession begins with permission,12 it becomes hostile if

the plaintiff (or one through whom the plaintiff claims) makes the

defendant (or one through whom the defendant claims) aware by words or

conduct that the plaintiff is no longer using the land by permission and

claims the exclusive right to it as owner.)13

(Use where there is a claim of actual ouster by a cotenant: When

two or more people possess the land by [deed] [will] [oral transfer]

[inheritance], each has certain rights, including the right to share in the

possession of the land, the right to share in the rents and profits, and

the right to an accounting. Possession becomes hostile when one

possessor clearly, positively and unequivocally denies rights of

possession to the other(s).14 However, mere [occupancy of the land]

[payment of taxes] [collection of rents and profits] [failure to account

voluntarily for rents and profits] [does] [do] not necessarily prove that

the rights of possession have been denied.15 Hostile possession begins

when one of the possessors explicitly refuses to permit the other to share

in possession of the land.)

Third, that this actual possession was open and notorious, and was

under known and visible lines and boundaries.16 The possession must

have been so open, visible and well known that the defendant (and those

through whom the defendant claims) knew or, under the circumstances,

should have known of the possession.17 The acts of possession must

have been of such a nature that anyone claiming ownership, or anyone in

the community, knew or by observing should have known that the plaintiff

(and those through whom the plaintiff claims) claimed the land as [his]

[her] [their] own and [was] [were] not merely (a) temporary or occasional

trespasser(s).18 Such possession must also have been under such known

and visible lines and boundaries as to identify the extent of the

possession claimed.

Fourth, that this actual, hostile, open and notorious possession of

the (identify land) under color of title and known and visible boundaries

must have been continuous and uninterrupted19 for (state statutory

period).20 This means that the plaintiff (and those through whom the

plaintiff claims) must continue actual, hostile, open and notorious

possession of the land under known and visible boundaries for the entire

(state statutory period) without interruption by [physical acts] [a lawsuit]

[(state other means)].21

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the plaintiff

holds title to (identify land) by adverse possession under color of title,

then it would be your duty to answer this issue “Yes” in favor of the

plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.