Adverse Possession Flashcards
What are the two theories of adverse possession?
American/Majority View: Earning Theory - Over time, the adverse possessor who has the property is rewarded for their diligence
English Theory - Punish the owner for not protecting their rights
Why does AP become a right? Why does AJ disagree with these ideas?
Quiets title (AJ: We know who has title, the original owner)
Encourages productive use of resources (AJ: Empirical assumption that may be wrong)
Brings productive resources back into the market (AJ: Empirical assumption that may be wrong)
Encourages vigilance on the part of the owner (AJ: Why encourage legal action if encroachment is harmless?)
What are the two kinds of tacking?
Type 1: If in privity of contract with previous possessors, can tack their duration of possession to present possessors to satisfy SOL
(If AP1 is ousted by AP2 and AP1 later retakes, AP1 can tack original period to current period)
Type 2: Once SOL satisfied, add part of land possessed to part owned in deed
What are the requirements for AP?
Actual entry, which triggers the statute of limitations
Open & notorious (Places a reasonably attentive owner on notice)
Continuous
Adverse and under claim of right
What is the requirement and remedy for minor encroachments?
Correct view: Development close to a property line is sufficient to put a reasonable owner on notice
Other view: Actual knowledge of encroachment
If in good faith, improvement increases value of the APs land and does not lessen value of Os land too much, then AP pays fair market value for land
If in good faith and if substantial encroachment, may order removal
If in bad faith, court almost always makes AP remove
What is the correct claim of right standard?
No state of mind inquiry (AJ preferred standard, don’t want to incentivize lying)
What does color of title mean?
A claim founded on a written instrument (deed, will) or a judgment or decree that is for some reason defective and invalid
What is the doctrine of constructive adverse possession under color of title
Actual possession under color of title of only a part of the land covered by the defective writing is constructive possession of all that the writing describes
What happens if AP runs SOL while LE has present possessory interest?
AP gets LE measured by LE owner’s life
What are the three disabilities that lengthen the statute of limitations for AP?
Age of minority (18)
Incompetence (Adjudicated status)
Imprisonment
What is the rule for determining if period of disability adds to AP?
Must show disability was present in True Owner at the date of entry
Can bring action within 5 years of longest-lasting disability being removed (death counts)
Period of Disability + 5 yrs > 10 yrs –> Disability
Period of Disability + 5 yrs < 10 yrs
–>10 years (AP SOL)
What is the difference between AP of real property and AP of chattels?
Same requirements, except AP of chattels is often NOT open and notorious
What is the rule of temporal tacking and AP of chattels?
Temporal tacking allowed if subsequent owners in privity
When does the SOL on an action for replevin for adverse possession of chattels begin?
New York View (Objective, AJ prefers): SOL on an action for replevin begins to run when the owner confronts the bona fide purchaser, demands return of the item, and possessor refuses to return it. Requires the True Owner to investigate provenance of works of art
Discovery Rule (Subjective, CA): SOL on an action for replevin begins only when True Owner discovers, or by exercise of reasonable diligence should have discovered, provenance of the art (O’Keefe v. Snyder)
