Adverse Possession

Question 1

Adverse Possession

Answer 1

• both an acquisition principle (not original acquisition, but gives rise to new root of title) and a limit on the right to exclude
• given unlawful entry under precise circumstances, if owner sits on right to exclude + statute of limitations for challenging the unlawful entry runs out, new title springs up in the adverse possessor (owner loses the property + the adverse possessor becomes new true owner)

Question 2

Adverse Possession and Statute of Limitations

Answer 2

• time measured from the initial moment you begin the adverse possession
• once you’ve passed the mark, you essentially collapse all of the wrong into that first moment - it’s not a continuing wrong, it’s just over (ex: if statute of limitations for ejectment is ten years, you can’t be sued in the eleventh year of your adverse possession for trespass in year 9 because the title is now just entirely yours)
• title relates back to original point of entry - you’re technically entitled to any rent, and profits, but must also pay taxes owed

Question 3

Requirements for Adverse Possession

Answer 3

• exclusive
• open and notorious
• actual
• continuous
• hostile/adverse (permission can kill A.P.)
• under claim of right
• must enter and remain in possession for requisite period of time established by the statute of limitations

Question 4

Adverse Possession - Good Faith vs. Bad Faith

Answer 4

• majority of jurisdictions say that good faith or bad faith is irrelevant (although good faith necessary in Iowa), but unofficial impact on the decision (courts + juries tend not to like those in bad faith)

Question 5

Adverse Possession - Procedure

Answer 5

• adverse possession likely to come up in lawsuit when either original owner files action for ejectment or trespass or adverse possessor files action to quiet title

Question 6

Adverse Possession and Boundary Disputes

Answer 6

• early federal government surveys weren’t always perfect (can be tough to conform irregular topography to rectangles) - adverse possession can be useful as a backup (instead of evaluating competing boundary claims, court can just look to who’s been using it)

Question 7

Scott v. Anderson-Tully Co. - Facts

Answer 7

• Scott brings suit for damages and in quiet title against A.T., also seeks an injunction against further trespass
• Scott had hired surveyor in 2003 - surveyor said 20.1 acres outside the eastern fence (Scott said this was a “convenience fence”, not boundary fence) belonged to Scott
• A.T. had own surveyor, plus adverse possession - put blue paint on trees (used by the co. to mark its boundaries) since 1969, granting of hunting licenses, lack of non-permitted boundary crossings, + timber cutting

Question 8

Scott v. Anderson-Tully Co. - Decision

Answer 8

• court said claim of adverse possession was “overwhelmingly supported” (used own Miss. criteria for a.p., a bit different from the traditional)

Question 9

Relation Back

Answer 9

• once adverse possession happens + conditions are satisfied, you basically rewrite history + the new owner has then been the owner since they started possessing the land (retroactively possessing the land)

Question 10

Exclusive

Answer 10

• adverse possessor needs to act as property owner would - keeping out others

Question 11

Open and Notorious

Answer 11

• the greater the notice to the owner, the less unfair to the owner -> the more likely it is you will win

Question 12

Continuity

Answer 12

• needs to be continuous (if it really does stop, the adverse possession clock would need to restart)
• but exception for seasonal homes - use only needs to be as continuous as an ordinary owner’s would be

Question 13

Hostile/Adverse

Answer 13

• doesn’t mean w/ enmity - just w/o permission
• if you give permission, you automatically end the adverse possession
• if person is on land w/ permission but then falling out but person stays, there is an ouster and the statute starts running

Question 14

Under Claim of Right

Answer 14

• sometimes mixed w/ adverseness/hostility
• Four possibilities for jurisdictional requirements: good faith, bad faith but rooted (proprietary ambition), bad faith but unrooted (will take but not if O comes along), mental state does not matter

Question 15

Why favor adverse possessors?

Answer 15

Three traditional views:

• rewarding the improver
• penalizing the lazy owner
• clearing titles cheaply (includes problems of lost or deteriorated evidence of title)

Question 16

Adverse Possession Against the Government

Answer 16

• much more difficult - no statute of limitations
  Reasons:
• gov worse at monitoring (would need to raise and spend taxes to do so)
• gov lands are generally of a kind difficult to monitor (remote non-homesteaded land, public streets)
• government sets the rules

Question 17

Carpenter v. Ruperto

Answer 17

• Carpenters own home in Iowa - land to the north is a cornfield + later just a field of weeds w/ junk on it - they gradually make use of this land for their own purposes (plant grass + peony bushes to create a play area for their children, driveway, + propane tank)
• after more than thirty years, title to the other parcel changes hands -> dispute
• Carpenter acknowledges knew she didn’t have title, but claims adverse possession (statute of limitations ten yrs)

Question 18

Carpenter v. Ruperto - Decision

Answer 18

• Carpenter loses - basically, Iowa has a good faith requirement for adverse possession

Question 19

Restatement of Property (Fourth) - Idea on Bad Faith

Answer 19

• new idea of how to treat bad faith adverse possessors - a.p. wouldn’t be conditioned on state of mind (bad faith totally fine) but the erstwhile owner could make a claim against bad faith adverse possessors for restitution + equity (would still win the property, but would need to pay restitution)

Question 20

Disabilities and Statute of Limitations

Answer 20

• statute will not run against you if you’re a minor, insane, or incompetent (or potentially in prison)
• only a disability at time of entry counts (not subsequent disabilities or disabilities in successors) - just making sure not to give people an incentive to use a.p. against the disabled (measure to protect from bad faith a.p.)
• can’t tack disabilities (if you’re a minor, then become insane, statute will run against you)

Question 21

Songbyrd Inc v. Estate of Grossman - Facts

Answer 21

• Byrd, a.k.a. Professor Longhair, transfers possession of master recordings to Grossman in the 1970s -> Byrd dies 1980 + Grossman in 1986 -> first licensing of the recordings in 1986
• original transfer likely between friends, but now interests being pursued by executors acting like profit-maximizing corporations (Grossman Estate might not have known tapes were on loan, + Songbyrd might not have known of transfer until tapes released)
• > Songbyrd sues for replevin and conversion

Question 22

Songbyrd Inc v. Estate of Grossman- Decision + Reasoning

Answer 22

• technically never mentions adverse possession, but we know it is b/c court doesn’t treat the conversion as a continuing wrong
• started out as a bailment (bailee can’t a.p., since has permission from owner) but court holds that once the Estate started licensing the master recordings, it was acting adversely to the interests of the true owner -> conversion begins (+ a.p. clock starts) -> Grossman Estate wins on a.p.