II. Subsequent Possession: Adverse Possession Flashcards
8 justifications for AP
Statute of limitations/finality: Gives initial owner opportunity to reestablish ownership.
Protection of expectation: protecting the interest of neighbors and APer Reward beneficial land use/Quiet Title Personhood: Property is the extension of personhood. Diminishing marginal utility of income: look at the wealth reduction in adverse possessor compared to owner Prospect (feel stronger when taken from you instead of given) Promoting development (of wilderness) Penalizing title owners for sleeping on their rights (penalty theory)
Elements of AP?
-Actual & Exclusive Entry, Open & Notorious, Continuous For Statutory Period, Adverse and Under a Claim of Right
AP State of Mind Requirement?
MAJORITY (Objective Approach): “CT RULE” Does not matter as long as other requirements are met
Good Faith Standard: Permit adverse possession only when adverse possessor legitimately belied they were occupying their own land or mistakenly occupied neighbor’s land
Aggressive Trespass Approach: “Maine Rule” Permit adverse possession only when adverse possessor legitimately belied they were occupying their own land or mistakenly occupied neighbor’s land
What is Color of Title in AP?
refers to a claim founded on a written instrument (deed/will) or judgment or decree that is for some reason defective and invalid (England & most juris don’t require this) can get all of the land described in the deed if you adversely possess part of it
-limitations: (1) has to be entry against the owner of the land in question (2) when adversely possess under color of title but someone is already in possession, it’s limited to what is adversely possessed not what the owner possesses
Van Valkenburgh v. Lutz?
AP - focus on possession under claim or right. Court refused to give Lutz AP because 1. Did not cultivate whole premises 2. Garage encroachment was not hostile because he thought it was his own land 3. Lutz gave up claim when he admitted to not owning in F1
Mannillo v. Gorsk
Maine Doctrine v. CT Rule
Building steps on neighbors land case. Can an entry and continuance of possession, under a mistaken belief that the possessor has title to the land involved, exhibit requisite hostile possession to sustain obtaining the title by adverse possession?
Maine doctrine: possession as an element of title by adverse possession can’t be bottomed on mistake (rewards intentional wrongdoer and disfavors honestly mistaken entrant)
Ct ruled in favor of CT rule: whether entry was a mistake or intent = same result: true owner is ousted and his neglect to seek recovery from possession within requisite time is the result of his lack of knowledge-But here, there is such a small encroachment that it isn’t “actual knowledge” or “open and notorious”: owner would have to constantly check property.
What happens when there are boundary disputes in AP? (3 options)
Doctrine of Agreed Boundaries: oral agreement is enforceable if relied on for long period of time
Acquiescence (reluctant acceptance of something without protest): can be enforced if acted like an agreement Estoppel: one neighbor makes representations about the location of common boundary line & other neighbor relies on it Can be enforced if relied on misrepresentation of boundaries
What is tacking?
Attempting to add onto what deed prescribes/get more than deed prescribe. Can be time or pieces of land. Requires privity (Deed of transfer, will, intestacy, contract, permission); no privity for trespass or abandonment.
Howard v. Kunto
Based on erroneous title. . For adverse possession purposes, possession is sufficient when the property is used in a manner that is ordinary and natural given the nature of the property. In meeting the time period requirement for adverse possession, successive owners of a property may add their occupancy times together where they share privity in the ownership interest.
How do disabilities work in AP?
: If minority age, unsound mind or imprisoned, owner can get more time limit than normal SOL in order to kick out adverse possessor
Only 1st disability counts Disability had to exist at time COA arose Can not take disability if not advantageous: EX - Normal SOL 10 years, minor gets 5 years after end of disability therefore only advantageous if under 13 years old
What are the two major rules for AP of chattels?
(1) NJ Discovery Rule
(2) NY Guggenheim Rule / Demand and Refusal Rule
What is the Discovery Rule in AP of chattels?
: (NJ) SOL does not start, COA not until party discovers or should have discovered facts that form the basis of the COA (not just that it was stolen but who/where that would allow them to sue) → More time on SOL, helps owner
Shifts burden to owner to establish facts that would justify delaying start to SOL Encourage possessor to buy from legit source register painting publicly display in a museum to show open and notorious Tacking is allowed (if privity) because continues dispossession of owner
What is the Demand and Refusal rule?
SOL begins when owner demands chattel and possessor refuses (Guggenheim v. Lubell)
Protects owner, does not require any effort of owner, can do nothing and SOL won’t start Limited when: owner takes too long or obvious where chattel is
When do we protect the real owner and when do we protect the bona fide purchaser in AP of chattels?
Purchase from Theft = Protect the Real Owner. Why? Security of ownership, don’t want to encourage theft/resale, owner has invested. Purchaser may be in better position to inquire as to where the chattel came from
Purchases from Entrustment = protect the purchaser. No malice, the did everything right, secure market transactions are important and encouraged
