PROPERTY –Spring 2011- Professor R. Farrell
1) Acquisition by Adverse Possession “A person can acquire adverse possession of another’s persons’ property if he possesses the property for the statutory period, usually 10 years, and his possession meets the five required elements ACTUAL/EXCLUSIVE/CONTINUUS/OPEN & NOTORIOUS/HOSTILE & CLAIM OF RIGHT.”
a) The law can take title away from one person and give it to another because the other person has possession for long enough to meet a statute of limitations.
· The statute of limitations sometimes begins when the wrongful possession occurs. In other states, it begins when the person discovers or should have discovered that the wrong has occurred.
· If a person with rightful possession doesn’t sue an unlawful possessor w/in X years, they can no longer recover the property (NE is ~20 years, CA is 5).
o If the subsequent possessor enters under color of title or pays taxes, the time period is shortened (in some states).
· If the lawful possessor is banned by the S.O.L., the ∆ gains a better title and the Π cannot sue the ∆.
o It might be fair, according to some scholars, to allow the ∆ to pay the Π for the property, and not to just give him the property rights… but others say that once the adverse possessor takes over, it is obvious that he had more interest in the land than the previous owner, so he shouldn’t have to pay for something that the previous owner didn’t care about in the first place.
i) Four Theories behind Adverse Possession
(A) Sleeping Theory – You should punish people with more land than they need or use.
(B) Earning Theory – People on land should be rewarded for their work on it after a certain amount of time.
(C) Stale Claims Bar Theory – Land title should be settled and not disturbed after a certain amount of time.
(D) Evidence Theory – Possession is the best evidence of title.
ii) Five requirements for adverse possession
(A) Actual: If the Π acts toward the land in question as would an AVERAGE OWNER, taking properly into account the geophysical nature of the land.
(1) The “actual” possession doesn’t need to be some kind of benefit done to the property, but some states may require certain kinds of activities (ex. paying taxes).
2) This makes it easy to say that wilderness land is taken by adverse possession (if you want to let trees grow, you’re not going to frequent the premises and give notice to people that it’s your land).
3) But given that some form of frequenting the premises is required (logging, grazing animals…etc), environmental damage is almost required (to some small degree).
a) The actual owner is encouraged to do the same if he doesn’t want to lose his property adversely.
b) The adverse claimant is then free to do with the property whatever they want (even if that means destroying the wilderness value).
(B) Open and Notorious: the use of the land has to be open for anyone to see that the occupant is using the land, putting a person of ordinary prudence on notice.
(1) Occupying as an owner would occupy for all the world to see if the owner cared to look.
(a) Minor boundary line encroachments won’t give a diligent landowner notice that his property is being adversely possessed.
(2) Actual is often open and notorious:
(a) If the adverse possessor’s possession wouldn’t normally satisfy the open and notorious requirement, but the true owner knows that the adverse possessor is there, the ADVERSE POSSESSOR WINS!
(3) Adverse possession must be the type of conduct where the true owner would be put on notice.
(a) True owner should have notice to be fair.
(C) Continuous: The law does not require the occupant to be present on the site at all times. The kind and frequency of the acts of occupancy are dependent on the nature and condition of the premises as well as the use to which it is adapted.
(1) In order to acquire a title by adverse possession, the possessor must be in possession throughout the entire time period (no substantial interruption of the possession).
(2) Adverse possession must be uninterrupted throughout the statutory period.
(a) True owner should have time to notice to be fair.
(3) Some jurisdictions allow the adverse possessor to “tack on” or aggregate the possession period when they transfer the property to another person
(a) Say A1 sells his rights to A2, the statutory period is 10 years, A1 had possession for 5, and A2 had it for 6. If they are allowed to aggregate their years in adverse possession, they have surpassed the statutory minimum.
(b) The subsequent adverse possessor has to be in PRIVITY with the first adverse possessor (enters with the permission of the prior possessor), otherwise the exclusivity requirement won’t be met.
(4) Seasonal use CAN BE sufficient to establish title by adverse possession.
(5) Under certain circumstances the running of a statute of limitations is TOLLED if the person entitled to bring the cause of action at the time the cause of action accrues has a disability (generally covering minority, insanity, or imprisonment).
(a) The disabled person is given X years until after the disability terminates to bring a cause of action (even though the statute may have already run out).
(6) Tacking preceding owners is allowed to meet the statute of limitations
(a) Howard v. Kunto – At least as long as since 1932, McCall resided in the house now occupied by Kunto. McCall had a deed for a 50 foot parcel of land called Hood Canal. However, the 50 feet described in the deed is not the same land on which McCall owned his house, but was actually adjacent to it. Since 1946, several conveyances occurred and the Kuntos took possession of the land in 1959. In 1960 Howard discovered that they were the record owners of the land. Tacking is allowed if the successive occupants are in privity. Because they were successive owners, they were considered to be in privity. The privity requirement came into existence to prevent successive trespassers from tacking. Because they are not trespassers here, tacking is permitted and the continuous element is met. Also, the fact that Kunto only used it for a summer house does not negate the continuous requirement as using the house in the summer is still the ordinary conduct of a usual owner.
(D) Exclusive: The sole physical occupancy or occupancy by another with the permission of the person claiming a title by adverse possession.
(1) Adverse possessor is using the land himself and not sharing with the true owner or with the public at large
(2) Possession can be exclusive even though others used the property during the possessor’s time of possession ONLY if the use by others can be characterized as permissive.
(a) BUT… the true owner usually can’t be in concurrent use because then the adverse possessor’s use is considered to be permissive.
(E) Adverse (a.k.a. “hostile,” “claim of right,” “claim of title”) Hostility does not require the presence of ill will toward the actual owner nor destructiveness toward the land, only that the possessor intends to claim the land and treat it as his own.
(1) Something in the character of the occupancy must show the person is entitled to possession
(a) Three standards for the state of mind of adverse possessor to meet the “adverse” requirement.
(i) Objective (Connecticut rule) – The state of mind of the adverse possessor is irrelevant. You must look at the actions of the adverse possessor and determine if those actions are consistent with the ownership.
· Manillo v. Gorski – Gorski made certain additions and changes to his home including new and extended steps as well as a concrete walkway. The steps encroach upon Manillo’s property to the extent of 15 inches. Gorski mistakenly thought the steps were on his land. However, the court said that his actions were all that mattered and that the Maine Doctrine only encourages trespassers. However, because it is difficult to determine if 15 inches would give the true owner actual knowledge, the case was remanded to resolve that question.
· Minor boundary line encroachments won’t give a diligent landowner notice that his property is being adversely possessed.
¨ The Innocent Improver Doctrine: If A builds a garage that mistakenly extends 6ft onto B’s property, at common law, B could have A move the garage no matter how costly it would be (even though the garage may enhance B’s property value).
¨ Today, courts look to whether it was a mistake or not, and to the relative hardship of the parties.
¨ This means that if it will be really hard for A to move the garage, and it really isn’t going to hurt B to let it remain there… B can’t make A move the garage, and A has to pay for the property.
¨ If A builds an entire factory by mistake that falls completely in B’s property, the court gives a few suggestions as to what can be done:
¨ A pays B for the property value that B is out.
¨ If B really wants the property, B can pay for the amount of the factory (because it is assumed that B will ke
uen – Dad wanted to give a painting to his son Michael, but he’d keep a life estate in the painting. He wrote his son three letters (one that looked more like a will, one that asked him to ignore that for tax purposes and that it was a present gift, and a third confirming the gift). Michael never had possession of the painting. Michael’s stepmother claims that it was part of an invalid will and not a gift. The issue is whether a valid inter vivos gift can be made while reserving a life estate (guy can take it back). Was there a completed gift?
(1) Intent – The letters taken together show a present intent to make a gift to the son and that keeping the painting was not inconsistent with a life estate.
(2) Delivery – The letters were sufficient for symbolic delivery.
(3) Acceptance – The court presumes acceptance because the painting had value.
II) Estates
A) Vocabulary
1) Words of purchase – words that tell you who owns something
a) E.g. “To A” – are words of purchase as A is acquiring something.
2) Words of limitation – words that describe the nature of the estate
a) E.g. “…and his heirs” – are words that describe the nature of the estate
3) Heirs – people who would take possession of your property if you died intestate.
4) Issue – descendants (below you on a family tree)
5) Ancestors – parents, grandparents, etc. (above you on a family tree)
6) Collaterals – brothers, sisters, nephews (next to you on a family tree)
7) Escheat – property goes to the state
B) Present Interests (a.k.a. Present estates, Possessory estates)
1) Fee Simple Absolute – absolute ownership of infinite duration.
a) How created: Execute a deed that says, “To A and his heirs.”
i) Can also simply say, “To A”
b) Heirs have no interest in the land until A dies.
c) Law will presume a fee simple absolute unless the words of the conveyance clearly indicate an intention to convey a lesser estate.
i) White v. Brown – Lide died, leaving a handwritten will which said that White could “have [her] home to live in and not be sold.” White alleges that she has a fee simple absolute, [and could then sell it]. Brown contends White only had a life estate, which would leave the remainder to Brown. The law presumes a fee simple unless the words clearly indicate otherwise. Though there is a phrase limiting alienation, it does not clearly indicate Lide’s intent to give a lesser estate. Therefore, a fee simple absolute was conveyed to White and the restraint on alienation is invalid.
RULE>Unless words & context clearly state intention to convey only a life estate it will be interpreted as conveying a fee estate.
2) Fee Tail – estate that passes to A’s descendants (by bloodline)
a) How created: “To A and the heirs of his body.”
b) Not to any adopted children
c) O, who passed the fee tail, had a reversion if the descendants ran out
3) Life Estate – estate lasts for the life of the grantee.
a) How created: “To A for life…”
b) Would revert to O at the end of A’s life, unless another future interest was created.
i) E.g. “To A for life, then to B and her heirs.” – Would create a remainder in fee simple to B.
c) A person with a life estate cannot produce waste or people with future interests have a cause of action. (Two kinds of waste).
i) Affirmative waste – Liability results from injurious acts that have more than trivial effects.
(A) There is one exception
(1) Open mines doctrine – if a mine is open, a person with a life estate can continue to mine from it without liability.
