Involuntary Redistribution of Rights

Question 1

What are the 6 elements of adverse possession?

Answer 1

1. ACTUAL possession
2. ADVERSE possession (aka hostile possession, aka possession under claim of title, aka possession under claim of right)
3. OPEN and NOTORIOUS possession (aka visible possession)
4. EXCLUSIVE possession
5. CONTINUOUS possession (aka uninterrupted)
6. for the REQUIRED PERIOD

Question 2

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?

Answer 2

Yes

Question 3

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?

Answer 3

No, this is not the law, most states would agree that Lutz did usual cultivation)

Question 4

What is the standard for the 1st element of adverse possession- ACTUAL possession?

Answer 4

if the adverse possessor used the property as the true owner would use it (Ewing v. Burnett)

Question 5

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?

Answer 5

No. A court will usually only require the possessor to show that some identifiable portion was actually possessed.

Question 6

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?

Answer 6

No. The state of mind is irrelevant

Question 7

What are the 3 possible standards for the 2nd element of adverse possession- ADVERSE (hostile) possession?

Answer 7

1. all courts require that the AP lack the legal right to be on the property
2. some US jurisdictions add a good faith requirement, i.e., that AP lacked awareness of lack of right)
3. some US jurisdictions follow the Maine doctrine requiring “bad faith”- an aggressive trespasser (claiming good faith will make the possessor lose

Question 8

If AP mistakenly believed he was building a structure on his own land, when he in fact is not, is that considered “hostile”?

Answer 8

No

Question 9

According to Mannillo v. Gorski (1969), may a claim of adverse possession be based on a mistaken possession?

Answer 9

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.

Question 10

Why is open and notorious possession (aka “visible”) a requirement of adverse possession?

Answer 10

(1) So that owner has chance to eject them (constructive knowledge requirement “what a reasonable person would be aware of”)

Question 11

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?

Answer 11

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

Question 12

According to Mannillo v. Gorski (1969), is a concrete sidewalk open and notorious possession of 15 inches of land?

Answer 12

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))

Question 13

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?

Answer 13

Yes, the true owner may be required to turn over the land in exchange for fair market value.

Question 14

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?

Answer 14

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.

Question 15

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?

Answer 15

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.

Question 16

If AP abandons the property, will they satisfy the 5th element of Adverse Possession- continuous use?

Answer 16

No. abandoned= no intent + no physical control. That would terminate actual possession and terminate the action in ejectment against AP.

Question 17

If AP’s possession was interrupted by the possession of others, will they satisfy the 5th element of Adverse Possession- continuous use?

Answer 17

No. Possession by someone else would also terminate the action in ejectment against AP

Question 18

According to Preble v. Maine Cent. R. Co. (1893), what is the maine doctrine?

Answer 18

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.”

Question 19

Is the maine doctrine a well followed rule of law? What kinds of cases does it apply to.

Answer 19

It is not well followed at all- has even been rejected by Maine. Even where honored, applies only to boundary cases.

Question 20

can the government bring adverse possession claims?

Answer 20

No.
“an action to recover real property or the possession thereof cannot be
maintained by a party other than the people . . . “

Question 21

What is another recovery option for adverse possession cases besides the usual AP or RO winning?

Answer 21

AP/RO get a choice: lose the land or buy it from RO/AP for market value.

Question 22

Do disabilities toll the statute of limitations on the action in ejectment?

Answer 22

Yes.

Question 23

What is the minority and majority view of disabilities tolling the statute of limitations on the action in ejectment?

Answer 23

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.

Question 24

Does a good faith purchaser from a thief become a true owner?

Answer 24

No

Question 25

Can a person with voidable title (e.g., paid by check that bounced) transfer good title to a good faith purchaser for value?

Answer 25

Sometimes

Question 26

What is an action for replevin?

Answer 26

- action to get your shit back- an action to recover personal property that was wrongfully taken or detained

Question 27

1. What is the Discovery Rule for actions for replevin? | 2. Does discovery rule focus on behavior of RO or AP?

Answer 27

1. 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 2. 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.

Question 28

When an owner demands return and a possessor refuses, does that trigger replevin cause of action and its statute of limitations?

Answer 28

Yes

Question 29

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?

Answer 29

Yes. To acquire title by adverse possession, the possession must be actual, open and notorious, exclusive, hostile, and continuous throughout the statutory period.

Question 30

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?

Answer 30

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.

Question 31

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?

Answer 31

The statute of limitations rule because it is difficult to determine what would constitute open and hostile possession for material goods.

Question 32

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?

Answer 32

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.

Question 33

Does the discovery rule focus on behavior of RO or AP?

Answer 33

It focuses on the behavior of RO. RO has the burden of showing due diligence to toll the statute, prevent it from running.

Question 36

According to Solomon R. Guggenheim Foundation v. Lubell (1991), is a federal court’s interpretation of state law binding on a state’s highest court?

Answer 36

No.

Question 37

What is laches?

Answer 37

A defense in equity under which a party claims that the opposing party has failed to assert its rights within a timely manner and that the rights thus cannot be enforced.

Question 38

What is replevin?

Answer 38

A suit to recover personal property wrongfully obtained by another.

Question 39

1. According to the findings of the "bird experiments", was the willingness to fight and the success at fighting over a resource related to value of that resource to the fighter? How? 2. ow did the bird's time spent away from land impact the value of the land to the bird? 3. ow did the bird's time spent on the land impact the value of the land to the bird?

Answer 39

1. Yes. The longer the fight, the higher the value of the resource. 2. Time spent away from land decreased its value to bird 3. Time spent on land increased its value to the bird (we are inclined to protect what we have — Bourgeois Strategy)

Question 40

Does Landlord LL lose rights by tenant T’s failure to eject possessor? adverse possession started against tenant T.

Answer 40

No. AP cannot tack T’s ownership to LL’s ownership because LL did not get his rights from T. T did not transfer diminished rights (or any rights) to LL.

Question 41

What are three types of "disabilities" for adverse possession?

Answer 41

Age of minority, unsound mind, imprisoned

Question 42

When does a disability need to have started in order to impact adverse possession?

Answer 42

Disability must be of “such person” (RO) at the “time the cause thereof accrues” (when AP started possession).

Question 43

O owns Blackacre, which has a vacant house on it. Without permission of O, A moves into the house and lives there 25 years. O sues to eject A from Blackacre and recover possession for himself. As a matter of justice, the law should(not does) say that ____ wins. In other words, who should win?

Answer 43

?

Question 44

What is eminent domain?

Answer 44

The government’s inherent authority to take private property for public use. The government must provide just compensation to the property owner.

Question 45

What is adverse possession?

Answer 45

1. When the statute of limitations is up on an action of ejectment

Question 46

must an Adverse possessor exclude record owner from taking possession in order to satisfy the 4th element of Adverse Possession- Exclusive Possession?

Answer 46

Yes, the Adverse possessor must exclude record owner from taking possession.

Question 47

Can an Adverse possessor have guests and still satisfy the 4th element of Adverse Possession- Exclusive Possession?

Answer 47

Yes

Question 48

When is Partial Adverse Possession allowed, and serve to satisfy the requirements of adverse possession?

Answer 48

Only able to take rest of entire property they are on if RO is not in actual possession of that portion. If RO is in possession of front 60 acres of a lot and back 40 are adversely possessed by Ad Po, Ad Po cannot win on front 60 acres. If ANYONE ELSE (not just RO) is in possession of land/portion of land —> Ad Po cannot win on that land/portion of land.

Question 49

When can an Adverse Possessor take right of possession from a renter of land?

Answer 49

a) Once rental period is up or renter stops paying (their possessory interest is dissolved), RO can eject renter & gain back right of possession then sue to eject the adverse possessor

Question 50

What is the Relation-Back Doctrine?

Answer 50

If an adverse possession claim is valid, it “rewrites history,” meaning that the adverse possessor is considered the record owner from the time of the start of their adverse possession (not when they win the case)

Question 51

Wat is the time restriction for a RO's disability in order for the disability to add time to the RO's repossession of their property?

Answer 51

c) Disability must be of the record owner (RO) at the time adverse possession started. (cannot add on multiple disabilities across generations)

Question 52

What impact would an RO's disability have on their heirs timeline for repossessing the property from an adverse possessor?

Answer 52

b) For some purposes, we put the successor of the record owner (the heir) in the record owner’s shoes. If record owner had more time to sue, heir has more time to sue.

Question 53

When does time start to run for an RO's opportunity to sue an adverse possessor if the RO has a disability?

Answer 53

d) Extra time runs from the time such disability is removed. (usually RO has 5 extra years after disability is removed)

Question 54

In meeting the time period requirement for adverse possession, can successive owners of a property add their occupancy times together?

Answer 54

Yes. As log as they share privity in the ownership interest. In Howard v. Kunto, 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.

Question 55

Does tacking apply if Ad Po took the right of possession from a renter?

Answer 55

no

Question 56

What is a Color of Title?

Answer 56

It is a written judgment or decree that you own the land

Question 57

What are 4 things a Color of Title can do?

Answer 57

A Color of Title (written judgment or decree that you own the land) can: (1) Required in some states for any adverse possession (2) Can change period of time for ejectment CoA (shorten) (3) Can change the evidence allowed on “actual possession”- relaxes the evidence required (4) Helps show extent of possession

Question 58

If color of title covers two lots & Ad Po is only in actual possession of one lot, how can Ad Po gain the other lot?

Answer 58

Constructive adverse possession

Question 59

What are the 4 requirements for Ad Po to gain the other lot by ‘constructive adverse possession’ if the color of title covers two lots & Ad Po is only in actual possession of one lot?

Answer 59

(1) Color of title must cover both lots (2) Lots must also be contiguous (sharing a common border; touching) (3) Lot 2 must be unpossessed (4) Lots must have same record owner (rightful owner) (RO)

Question 61

When can there be an adverse possession of personalty?

Answer 61

When the Statute of Limitations runs out on action for replevin (getting your shit back)

Question 63

Who has the burden of showing due diligence, in order to prevent the statute of limitations from running?

Answer 63

RO has burden of showing due diligence (at least trying to find the item/person responsible) to prevent S/L from beginning to run

Question 64

1. According to Solomon R. Guggenheim Found v. Lubell (1991), is it always the case that RO has the burden of showing due diligence (at least trying to find the item/person responsible) to prevent S/L from beginning to run, if the item was stolen? 2. If not, what is the standard for triggering a replevin cause of action and its statute of limitations?

Answer 64

1. It would not be prudent to add a due diligence requirement when considering a statute of limitations defense for the recovery of stolen property because the owner of stolen property may have many reasons for not pursuing the property, such as a fear that publicity may cause the stolen property to remain hidden. Thus, the rule remains that the statute of limitations will begin to run once a DEMAND for stolen property is made. However, in terms of a laches defense (A defendant who invokes the doctrine is asserting that the claimant has delayed in asserting its rights, and, because of this delay, is no longer entitled to bring an equitable claim), due diligence may be considered. This is necessary to ensure that the original owner of stolen property does not abuse the fact that the statute of limitations does not run until she makes a demand upon the current possessor of the property. 2. When owner demands return and a possessor refuses, that triggers replevins CoA and its S/L

Question 65

What was Miller's theory of Adverse possession?

Answer 65

time a person has been on land is determinative of “true owner” title (for adverse possession if person has been there long enough)

Question 66

What was Holmes's theory of Adverse possession?

Answer 66

“roots” you make in land are important; we cannot cut at them without cutting at person’s life (for adverse possession if person has developed a personal connection to the land)

Question 67

What was Posner's theory of Adverse possession?

Answer 67

—> Holmes was making a point about “diminishing marginal ability of income” (1) He means “land would bring same wealth to both Ad Po & RO, but it would bring more utility to Ad Po.” (2) Assumes Ad Po is poorer than RO, so money has more utility value for Ad Po (3) Assumes everyone has a fixed utility of money (what if RO, regardless of wealth, simply values money more?)

Question 68

As a matter of policy, what is the justification for Adverse Possession?

Answer 68

e) As a matter of policy, Adverse Possession assumes that the Ad Po has more attachment to the land than RO b/c RO must have not cared enough to eject Ad Po within S/L for ejectment

Question 69

What is the Endowment Effect?

Answer 69

a) When you have something, you become attached to it (add extra value) b) Person who doesn’t have it (possess the thing) will not have this attachment

Question 70

What is Eminent Domain?

Answer 70

Involuntary transfer of title to the government

Question 71

2. Why is lack of ED a problem for democratic countries?

Answer 71

?

Question 72

What are the 2 methods of eminent domain, and describe them.

Answer 72

1. Condemnation; intentional (or explicit) taking | 2. Inverse condemnation (take first, pay later)

Question 73

What is the 5th Amendments limit on eminent domain?

Answer 73

(private property cannot be taken for public use without just compensation)

Question 74

What is the “Public use” requirement for eminent domain?

Answer 74

LAND MUST BE USED FOR PUBLIC BENEFIT USSC started by interpreting public use as gov’t’s “pressing need & whether attainment by other means would be unduly burdensome” for the government By 1920 —> Public use = public purpose/benefit

Question 75

According to (a) Berman v. Parker (1954), the city wanted to redevelop a slummed area in D.C. that would be resold to developer companies. Morris's store wasn't blighted but because it fell within the area that the gov was renovating, Morris' store was at risk of being taken. Is a plan enabling the gov to take property in blighted areas and transfer it to private companies for redevelopment a taking for public use?

Answer 75

Yes. Redevelopment of blighted area is a public use even when owner’s (Morris's) specific store was not blighted (you are collateral damage, and that’s OK)

Question 76

According to Hawaii Housing Authority v. Midkiff (1984), does the “public use” requirement of the Takings Clause of the Fifth Amendment prohibit a state from taking, with just compensation, title in real property from private lessors and transferring it to private lessees for the purpose of reducing the concentration of ownership of private property?

Answer 76

No. Virtually any use within the police powers of a sovereign state constitutes a “public use” for purposes of the Fifth Amendment Takings Clause. In the present case, the power to use eminent domain to redistribute an oligopoly of land ownership is absolutely within the police powers provided to Hawaii as a sovereign state. (i) SUPER LOW level of federal scrutiny is established here (ii) USSC here says public use is valid if: “rationally related to a conceivable public purpose”

Question 77

According to Kelo v. City of New London (2005), may a state exercise its eminent-domain authority to condemn private property and sell it to private developers for the purpose of creating new jobs and increasing tax revenues without violating the “public use” requirement of the Fifth Amendment?

Answer 77

Yes. Federal scrutiny is basically none when it comes to “public use.” Complete deference to state. *After Kelo: 40 states made stricter laws to protect landowners (made using ED harder or gov’t had to pay more for land)

Question 78

What are the 3 policy reasons behind how the just compensation requirement of the 5th amendment eminent domain, promotes efficiency?

Answer 78

1. Fiscal illusion- Just compensation internalizes the negative externalities (offsets negative impact on society). Without compensation, the argument goes, governments operate under a fiscal illusion because, from their perspective, their actions are costless. 2. “Public Insurance”- idea that just compensation encourages landowners to continue improving their land 3. just compensation reduces wasteful fighting (lobbying, etc.)

Question 79

What is the policy reason behind how the just compensation requirement of the 5th amendment eminent domain, promotes fairness?

Answer 79

(a) Armstrong principle: “to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. US (1960)

Question 80

There is a positive and normative analysis for what is just compensation. What is the Positive Analysis (what is)?

Answer 80

(i) FMV (fair market value) - amount a willing buyer would pay a willing seller, required by Constitution (ii) Make owner whole but no more (iii) FMV only covers person’s net loss (not subjective value)

Question 81

There is a positive and normative analysis for what is just compensation. What is the Normative analysis (what should be)?

Answer 81

(i) Include subjective value of land to owner?? (No, would be unfair because some attach more value than others; diff. in rich/poor; self-appraisal wouldn’t work) (ii) What about incremental compensation? More money if you have children or have been on land for a long time, etc… (iii) What about giving owners stake in new use of land?