Bratspies Property Spring 2012
Adverse possession
501(2) (and all cases we read)
Elements of an effective claim of adverse possession
-possession must be hostile and under claim of right
-possession must be actual
-open and notorious
-exclusive
-continuous for statutory period
Reasoning/rationales
Adverse possession combo of statutory and common law
-it deals with abandoned or neglected property
-gives property interest to one who improves land
We as a society abhor un-owned things
-highest and best use – getting rid of stale claims, solving lingering uncertainties, law comes down in favor of lingering indecisions
-sleeping theory – when an individual who sleeps on his rights and takes no right to vindicate them, shouldn’t be surprised when the law takes that view too. If you don’t bother, at some point, the state isn’t going to either.
-earning theory
*these three theories sometime work together and sometimes dont
At point where vindicating rights costs exceeds values of rights to owner then that’s where the statute of limits ends ownership
Van Valkenburg v. Lutz
This case has been overruled and today the dissent would be more correct
Lutz’s lost because they did not meet the requirements of the NY statutes of occupation under claim of title and hostile claim
Failed on two grounds –
-lack of adverse/hostility
-lack of possession (actual)
-cultivation/improvement – cleared some brush, scattered junk around, garden
-shack/dwelling – with someone living there
Court said this doesn’t amount to possession
Why does actual possession matter – well then no earning theory or highest and best use theories are implicated
-also isn’t there some use that rises to the level to let the true owner know that someone is using his land, then it doesn’t make sense under sleeping theory to take that owners’s property
Then the cultivation didn’t cover whole lot – garden that gives some food to neighbors
There was no enclosure – no fence,
Hostility
The court here was very confused – can’t be hostile if think it’s yours, can’t be hostile if you know it’s NOT yours
Should state of mind matter?
-objective rule: (majority) adopted in mannillo, rule in Britain, model rule – all that matter is, did they enter and was it used in a way that should have put in owner at notice that someone was appropriating their land
Manillo case- ease the plight of the innocent improvers, in a subdivision its hard to know where the property lines are and these people had no idea when they built some steps and walkway – 15 inch encroachment
The plaintiffs brought case to get the Gorski’s off their land
-maine rule/aggressive trespass (overturned in Manillo, but maybe still exists in some jurisdictions)
-good faith rule
Then ny moved away from objective to good faith rule
NY statute with 2008 amendment – claim of right – a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor
-this good faith reasonable belief doesn’t apply with the owner can’t be found
Lutz had bad representation here because his first claim was just to get a walkway through the VAN’s property – so admitted already it wasn’t the lutz’ property
You’ll see a lot of hostile fail because they aren’t actually trying to displace the owner
And that’s why whole hostility question so complicated
Dissent – if the neighbors knew he was there, the owner must have too, he had a garden, there was someone living there
-also, his garden was his full-time occupation
When is land actually possessed?
Two rules:
First question:
Color of title – you actually have a deed or will or some objective reason for believing this land is yours
Without color of title
Problems:
THESE ARE UNDER COLOR OF TITLE (and after statutory of limitations has elapsed)
When A works the back 40 acres of 100 acres she had worked on from getting an invalid title and O is nowhere to be found
– A hasn’t had activities that were open and notorious enough to warn the owner about the other 60 acres – WRONG
– COLOR of TITLE: “where a known farm or single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not enclosed .. is deemed to have been occupied for the same length of time as the part improved and cultivated” (bottom section of 512)
SO get ENTIRE PROPERTY
–so rule is that it’s very different if you enter in color of title
Partial actual possession + partial constructive possession DEFEATS the O’s constructive possession
*so, should probably look at twen for section 512 and know it
NOW – if O is living on the land and A still enters on an invalid deed, and she has occupied and improved the back 40 acres. A brings suit to evict O from farm claiming title by constructive adverse possession
Soo because O is here, he should have known that someone was up and living and his land over the course of 10 years; equally A had ought to discover that O was on the other side of the property too
A has actual possession of 40 acres
A has constructive possession of the whole 100
(these are the same as last)
But here . O has constructive possession on 100
And O has actual possession of 60
Soo both A and O have actual possession and constructive possession of part of the land..
And the part that O is actually possessing, A’s constructive cannot evict
Actual wins hands down – no way that A can claim the part that O is actually possessing
But, for the part that A is actually possessing … and is only O’s constructive .. then A gets it!
SO ANSWER IS: A gets back the 40 acres – because A
What about the property that neither A or O were actually possessing …
O has got constructive possession under a valid deed
A has got constructive possession under an invalid deed
O wins! O had the valid deed
NOT UNDER COLOR of TITLE
Section 522
O doesn’t live on farm (constructive). A entered back 40 acres, with no deed, she has improved 40 acres in usual manner required. A brings suit to evict O from farm
A gets back 40 acres – all A can get is what A has actually (and improved after time) used because has not color of title, so O’s constructive possession trumps what A has done nothing with.
Two continuous lots 1 and 2, owned by X and Y respectfully. The lots are conveted by an invalid deed from Z to A. A enteres lot 1 a
n 1994 A enters adversely into Blackacre, owned by O. in 200, O dies leaving a will that devises blackacre to B. in 2004, A sues to quiet title. Who owns blackacre
A because her original entry was against O—CORRECT!!
B because A’s adverse possession against her interest only began in 2000.
A entered against O and the statute of limitations against O has run. The fact that O transferred property to B is irrelevant to when A acquired the property due to adverse possession.
If subsequent possession tried to eject A, he would succeed. The state will support B if B wants to get him out.
Problem from last class: two lots next to each other, 1 and 2 are owned by X and Y but they are not in possession. The lots are given in a invalid deed from Z to A. A enters lot 1 and occupies usual manner for stat period. A sues Z and Y to quiet title to both lots. What result
A gets lot 1 but not 2 – CORRECT!
A gets both lots
A gets lot 2 but not lot 1
A gets nothing
With regard to lot 1, easy question. But lot 2 is more difficult because A has never entered the property … the owner of lot 2 has not been notified that A is making a clabim to lot 2 – nothing has put owner of lot 2 on notice.
Y does not have notice .. no actual entry
Tacking problems
In 2000, A enters Blakacre adversely against O. Assume A fulfills the requirements of open and notorious use. In 2007, B tells A get the hell outa here. A leaves and B moves in. in 2010, who owns blackare.
A owns Blackacre because A can tack B’s possession onto his
B owns Blackacre because B can tack A’s possession onto hers
O owns blackacre because neither A nor B has possessed for the statutory period and they cannot tack. – CORRECT
Howard v. kunto case guides analysis – allowed tacking in that case because
Privity .. same or successive relationships to the same rights of property
-valid transfer would be sale, gift, inheritance, etc. –all normal ways to transfer
HERE there is no transfer that the court would say is a valid transfer of a continuing interest – here you have someone throwing someone else out.
Tacking: version 2: what if A instead sells her interest in Blackacre to B in 2007 in 2010, who owns Blackacre
A owns Blackacre because A can tack B’s possession onto his
B owns Blackacre because B can tack A’s possession onto hers – CORRECT
O owns blackacre because neither A nor B has possessed for the statutory period and they cannot tack.
Privity – voluntary transfer when A sells her interest in Blackacre to B. (A’s interest is 7 years of adverse possession) and so in 3 years – B is in possession to claim property
