Adverse Posession

Question 1

What is Adverse Possession?

Answer 1

If you take over possession of land for long enough even though you are a trespasser.

Question 2

How is AP similar to lost property

Answer 2

Person has a dual status: Thief and Trespasser

Question 3

What are the elements of Adverse Possession and what is the standard of proof?

Answer 3

(1) Entry that is actual and exclusive
(2) Open and Notorious
(3) Continuous for the statutory period
(4) Adverse/under a claim of right Most Complicated

Question 4

What constitutes entry that is actual and exclusive?

Answer 4

a. physical entry
b. Exclusive: original owner is not occupying some parcel of that land.

Question 5

What is open and notorious?

Answer 5

Obvious

Question 6

What is continuous for statutory period? What is California’s take?

Answer 6

Common Law 20 years.
California: Shorten statutory period to 7 years. To build claim it is essential you pay property taxes on the land. Rule out the squatter but includes most people in doubt of border line.

Question 7

What is Adverse/under a claim of right?

Answer 7

MOST COMPLICATED.
a. You can not have the owner’s permission.
b. If you are relying on a title deed that incorrectly describes the dividing/property line.
c. Incorrect information from the owner.
d. Dominant approach. Attitude does not matter.

Question 8

What are the ideas behind attitude in claiming AP?

Answer 8

One idea: It is only in the benefit of good-faith people. Do not want people to profit from their wrongs.

Other: It has to be adverse. If you thought you owned it you can’t make the argument.

Question 9

What are some policy points behind AP?

Answer 9

Theory of punishing owner for neglecting their property rights. Might want to make exceptions for disabilities.

Rewarding Adverse Possessor who brought property previously neglected into beneficial use. Now they get the title.

Don’t want people to profit from their wrongs.

Question 10

What is Oliver Wendell Holmes take on AP?

Answer 10

Desire to clarify what has happened. No good to pull out old deeds after people have already treated fence as property, this doesn’t make sense. Boundary line is already set so let it be instead of having to wreck everything and rebuild it.

Question 11

What are some situations in which continuous can be an important element?

Answer 11

What if you are there for summers, good enough, if thats how owners of property would use it. Cabins in Michigan people can’t get to in winter. People who use it like the owner is good enough to be continuous.

Question 12

What are examples of and not of open and notorious?

Answer 12

Using for underground mining is not obvious.
Gardening is not good enough. have to behave like the owner.
Farm the land, build something on the land.
Do something a true owner would do.

Question 13

What defeats AP?

Answer 13

Consent

Question 14

What is tacking?

Answer 14

When someone adds their period of land possession to that of a previous owner to establish continuous adverse possession for the statutory period.

Question 15

What is privity?

Answer 15

The relationship necessary to allow tacking. Occurs by contract of sale, gift, will, or intestate succession.

Question 16

What rule does common law apply to adverse possession of artwork? What’s the case?

Answer 16

Court applies discovery rule to mitigate unjust results that would flow from strict adherence to the rules of adverse possession. Case: O’Keeffe v. Snyder.

Question 17

What is UCC 2-403?

Answer 17

Protects the Ordinary Course Buyer or BFP of the goods when they purchase the item from a thief and are sued for possession of the item by the OG owner.

Question 18

What 2 situations does UCC 2-403 protect the BFP from OG Owner

Answer 18

(1) Voidable title and
(2) Entrustment of possession to merchant.

Question 19

What is void title?

Answer 19

Theft, no consent or release to sell, stolen in the middle of the night. BFP loses.
Policy don’t want to to create a market of stolen merchandise

Question 20

Voidable Title:

Answer 20

Owner did consent to sell, but because of some fraud or trick. [Ex.: Owner did agree to sell something and the check bounced, or you trust person to pay you on credit.]

Question 21

What happens if the trickster has passed that onto a BFP who knew nothing about it.

Answer 21

BFP Wins. UCC 2-403 listed borderline cases, took them all to be voidable.

Question 22

Policy for allowing BFP to win when trickster passed item on to BFP? And example?

Answer 22

Ex. Owner who was tricked receives blame for putting the item into the chain of commerce. Owner is Cheaper cost avoider between OG Owner and BFP.
Thief is cheapest, but between OG Owner and BFP it’s the OG Owner.
Incentivizes owner to be more careful and not trust someone they shouldn’t have trusted.

Question 23

What if you entrust possession to a merchant who deals in goods of that kind?

Answer 23

BFP or OCB is protected.
Ex. Didn’t intend to sell painting, entrusted to a gallery that does sell paintings, but just for the purpose of showing it, not for the purpose of selling it. Merchant has the power to convey good title to the BFP of that kind. You have a cause of action against crook, but between OG Owner and BFP, BFP/OCB wins.

Question 24

What was Hernando De Soto saying in the Other Path about AP?

Answer 24

Peru should clarify title for people, they have been there long enough and it has been neglected by the original owner. Peru has lots of adverse possessors because of ancient Spanish land titles.

You can’t get loans against the security of things you don’t own.

Lots of new investment would be generated this way. If you were to clarify title and make it official then not only would they be happier because they are the owner, but they can make investments which would not be possible.

Question 25

Alternative to AP with boundaries?

Answer 25

Agreed Boundaries: Two neighbors decide the fence between them is good enough. The only issue could be statute of frauds. Oral agreements are valid.

Question 26

What are your rights if you are a mistaken improver?

Answer 26

You can sue the owner of the land for restitution. Make the D pay the P the value of improvement to the D.

Unjust Enrichment argument.

P is contractor that built building, its not on P land, it is considered belonging to D. Make the D sell the property to the P at its unimproved value.