Involuntary Redistribution of Rights Flashcards
What are the 6 elements of adverse possession?
- ACTUAL possession
- ADVERSE possession (aka hostile possession, aka possession under claim of title, aka possession under claim of right)
- OPEN and NOTORIOUS possession (aka visible possession)
- EXCLUSIVE possession
- CONTINUOUS possession (aka uninterrupted)
- for the REQUIRED PERIOD
According to Ewing v. Burnet (1837), if the possessor doesn’t actually occupy the property, but acted in a way that publicly implied ownership over the property for over 21 years by digging sand and gravel from the lot, has actual possession taken place?
Yes
In Van Valkenburg v. Lutz, the court found that Lutz did not cultivate the land because he didn’t “use the whole”, would most states agree?
No, this is not the law, most states would agree that Lutz did usual cultivation)
What is the standard for the 1st element of adverse possession- ACTUAL possession?
if the adverse possessor used the property as the true owner would use it (Ewing v. Burnett)
Per the standard doctrine of cultivation, does a possessor need to possess all of a given tract in order to be in actual possession of some of the tract?
No. A court will usually only require the possessor to show that some identifiable portion was actually possessed.
For the 2nd element of adverse possession- ADVERSE (hostile) possession, all courts require that the Adverse Possessor lacks legal right to be on land. Is the state of mind of the possessor relevant?
No. The state of mind is irrelevant
What are the 3 possible standards for the 2nd element of adverse possession- ADVERSE (hostile) possession?
- all courts require that the AP lack the legal right to be on the property
- some US jurisdictions add a good faith requirement, i.e., that AP lacked awareness of lack of right)
- some US jurisdictions follow the Maine doctrine requiring “bad faith”- an aggressive trespasser (claiming good faith will make the possessor lose
If AP mistakenly believed he was building a structure on his own land, when he in fact is not, is that considered “hostile”?
No
According to Mannillo v. Gorski (1969), may a claim of adverse possession be based on a mistaken possession?
Yes. A claim of adverse possession may be based on a mistaken possession, but it must also be visible enough to put the owner on notice.
Why is open and notorious possession (aka “visible”) a requirement of adverse possession?
(1) So that owner has chance to eject them (constructive knowledge requirement “what a reasonable person would be aware of”)
According to Marengo Cave Co. v. Ross (1937), is possession of land open and notorious only if it would give clear and unequivocal notice to the true owner or his agent visiting the land- would occupied caves underneath the land be considered “open and notorious”, and give fair notice that the owner’s rights are being invaded?
No. Possession that is secret or invisible will fail to meet the requirement, and without notice, the statutory period of continuous possession does not begin.
- caves underneath land are not “open and notorious”; a reasonable owner would not have known about it
According to Mannillo v. Gorski (1969), is a concrete sidewalk open and notorious possession of 15 inches of land?
No. It’s not open and notorious if it would take a survey for real owner to notice (NOT usual rule, which is that you DO need to monitor your land (even boundary lines))
Even if the possession is not sufficiently open to put the owner on notice, and an innocent adverse possessor may not be able to relinquish the property without great expense or difficulty, will the true owner be required to turn over the land?
Yes, the true owner may be required to turn over the land in exchange for fair market value.
According to Howard v. Kunto (1970), Does using property as a summer home, with the AP leaving the property for periods of time, satisfy the 5th element of Adverse Possession- continuous use?
Yes. Continuous requirement depends on how usual owner would use it (“possession is sufficient when the property is used in a manner that is ordinary and natural given the nature of the property”). If the property is a summer home, like it was in this case, living on the property year-round is not required to establish adverse possession.
According to Howard v. Kunto (1970), may a previous owner’s time occupying a property count toward the statutory period so as to constitute adverse possession?
Yes. 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. Because each purchaser in this case believed himself to have the appropriate record title to the plot of land that he occupied, their common erroneous belief is sufficient to establish privity between them all such that their collective period of occupation satisfies the adverse possession statute.
If AP abandons the property, will they satisfy the 5th element of Adverse Possession- continuous use?
No. abandoned= no intent + no physical control. That would terminate actual possession and terminate the action in ejectment against AP.
If AP’s possession was interrupted by the possession of others, will they satisfy the 5th element of Adverse Possession- continuous use?
No. Possession by someone else would also terminate the action in ejectment against AP
According to Preble v. Maine Cent. R. Co. (1893), what is the maine doctrine?
AP cannot win if mistake of boundary and AP lacked intent to claim beyond true line
“If a party through ignorance, inadvertence, or mistake, occupies up to a given fence beyond his actual boundary, because he believes it to be the true line, but has no intention to claim the title to that extent if it should be ascertained that the fence was on his neighbor’s land, an indispensable element of adverse possession is wanting. …The intention is not absolute, but provisional, and the possession is not adverse.”
Is the maine doctrine a well followed rule of law? What kinds of cases does it apply to.
It is not well followed at all- has even been rejected by Maine. Even where honored, applies only to boundary cases.
can the government bring adverse possession claims?
No.
“an action to recover real property or the possession thereof cannot be
maintained by a party other than the people . . . “
What is another recovery option for adverse possession cases besides the usual AP or RO winning?
AP/RO get a choice: lose the land or buy it from RO/AP for market value.
Do disabilities toll the statute of limitations on the action in ejectment?
Yes.
What is the minority and majority view of disabilities tolling the statute of limitations on the action in ejectment?
Minority: A disability of O when AP takes possession tolls (pauses) the statute until the disability is removed.
Majority: A disability of O when AP takes possession allows O to take advantage of an alternative limitations period after the disability is removed.
Does a good faith purchaser from a thief become a true owner?
No
Can a person with voidable title (e.g., paid by check that bounced) transfer good title to a good faith purchaser for value?
Sometimes
What is an action for replevin?
- action to get your shit back- an action to recover personal property that was wrongfully taken or detained
- What is the Discovery Rule for actions for replevin?
2. Does discovery rule focus on behavior of RO or AP?
- The statute of limitations starts when RO knows or reasonably should know who the possessor of the stolen chattel is (not when property goes missing, but when there is a reasonable suspect). This gives more protection (more time) to RO
- the statute of limitations began to run when the true owner first knew, or reasonably should have known, the identity of the possessor of the stolen chattel
The discovery rule shifts the emphasis from the conduct of the possessor to the conduct of the owner and puts the focus on whether the owner has acted with due diligence in pursuing her property.
When an owner demands return and a possessor refuses, does that trigger replevin cause of action and its statute of limitations?
Yes
According to Marengo Cave Co. v. Ross (1937), is possession of land open and notorious only if it would give clear and unequivocal notice to the true owner or his agent visiting the land that the owner’s rights are being invaded?
Yes. To acquire title by adverse possession, the possession must be actual, open and notorious, exclusive, hostile, and continuous throughout the statutory period.
According to O’Keeffe v. Snyder (1980), does the discovery rule toll the statute of limitations if the owner of stolen personal property acted with due diligence to pursue the property?
Yes. The discovery rule requires that the owner of stolen personal property act with due diligence to pursue the property to receive the benefit of the tolling of the statute of limitations.
When determining how much time a true owner has to successfully bring an action to recover stolen personal property, there are two possible methods: (1) a statute-of-limitations rule or (2) an adverse-possession rule. Which one is preferred and why?
The statute of limitations rule because it is difficult to determine what would constitute open and hostile possession for material goods.
When applying the statute-of-limitations rule to stolen goods, courts have developed a concept known as the discovery rule to determine when a statute of limitations begins to run. What is the discovery rule?
a cause of action will not accrue until the injured party discovers, or should have discovered, facts that form the basis of a cause of action. Statute runs from time owner knows or should know whom to sue in replevin.
