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Property I
Rutgers University, Newark School of Law
Sclar, Diana

Property Fall 2012: Diana Sclar

Rutgers-Newark: School of Law

Adverse Possession

Adverse Possession: If within a number of years specified by the statute of limitations, the owner of land does not take legal action to eject a possessor who adversely claims the property of an owner, the owner is barred from bringing an action of ejectment and the adverse possessor has title of the land.

a. Statute of Limitations: It is a statute of a pre-determined time that allows for a cause of action of ejectment

1) Quiet title: An action which you name all the person and the owner of the record who could possibly have claim to title

b. Title: It extinguishes the old title and creates a new title

1) It can be transferred legally

2) No record: It cannot be recorded in the courthouse because it arises from operation of law

3) He must file a quiet title action against the former owner

b. Elements

1) Actual entry: To trigger the cause of action that starts the statute of limitations and extent of AP’s claim

1. Constructive possession: If there is actual entry on the part of the land , the possessor can get constructive possession of the rest if he has color of title for the whole land

2. Consider the Minority approach of Van Valkenburg- Cultivation

2) Exclusive: She must not be sharing possession with the owner or the public

1. Two people however can act in concert and share only among themselves

3) Open and Notorious

1. The AP’s acts must constitute reasonable notice to the owner that she is claiming dominion so the owner can defend her rights.

a. Possession of farmland: Fencing, cultivating and erecting a building is usually open and notorious

2. Inferred: from the acts of the community that the actor is claiming ownership

3. Must be appropriate: To the condition, size and locality of the land

4. Statutory Requirements:

a. Van Valkenburgh v Lutz: Title to a parcel may vest in an AP who occupies the parcel under claim of right, protects the parcel by enclosure, improves or cultivates the parcel, and maintains that state of affairs for the statutory period

i. Minority approach

4) Adverse and Under a claim of Right: Hostile requirement, It means that the possession is without the owner’s consent and not subordinate to the owner

1. Objective test: State of mind does not matter, only the actions of the possessor is important and it must look like they are claims of ownership

a. It must look like they are claims of ownership under the community without permission

b. Mannillo v Gorski: To claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another

i. When the encroachment is small and the fact of intrusion is not clearly apparent but requires disclosure, the encroachment is not open and notorious and statute will run only when the owner has actual knowledge of it

ii. Problem: The true owner may not be put on notice that someone is in possession of a very small strip of land

2. Good faith test: An AP must have a bona fide or good faith belief he has title

a. Mistaken belief: If the possessor mistakenly believes he has title but if he knew the truth, would not claim title, he is not occupying adversely

i. Occurs in boundary dispute

3. Maine Doctrine (Aggressive Trespass): If possessory is mistaken and would not have occupied if he knew, adversity is missing

. Problem: Punishes people who make honest mistakes

4. Color of title: Claim founded on a written instrument that is defective or invalid but is unknown to the claimant that it is invalid

a. Most states: color of title is not required

b. Few states: Require it

c. Constructive possession: Entry under color of title is in all states realized constructive AP

5) Continuous and uninterrupted: Possession must continue uninterrupted throughout the entire statutory period

1. Requires only the degree of occupancy the average owner would make and a person can have continuous possession even when there are intervals it was not used

a. Seasonal Use: Is continuous

2. Tacking: An adverse possessor can tack onto her own period of AP any period of adverse possession by predecessors in interest

a. Separate periods of AP by those holding it adverse can be tacked on together provided there is privity of estate

b. Privity of estate: A possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession

i. Ousted by third party: There is no tacking because it requires a voluntary transfer

ii. If A reenters: She can tack on to her previous possession but must be tolled from the time she was ousted

iii. Abandonment: There is no tacking where AP abandons the property even though he enters immediately and the statute of limitations runs anew on the new entry

iv. Tacking on the owner’s side: Once AP begins to run against O, it runs against O and all of O’s successors in interests

3. Payment of taxes: AP in some states need to pay them

4. Interruption by the true owner: If the true owner reenters the land openly and notoriously for the purpose of regaining possession, an interruption occurred

c. Disabilities of the owner: Some statutes give an additional time of period to bring an action if the owner is under a disability

1) Only disabilities that begin at the time AP begins count

2) Limitations: Only the disabilities specified in the statute and only disabilities of the owner at the time AP count

d. Extent of Land Acquired by AP: Depends on whether the possessor entered with or without color of title

0) Without color of title: Claim only extends to the part of the land occupied

1) With color of title: Doctrine of Constructive Adverse Possession

0. He is deemed to be in APP of the entire property described on the instrument

e. Interests not affected by AP:

0) Future interests: The statute of limitations does not run against a remainder existing at the time of entry by an AP because the holder of the remainder has no right to eject AP. It is immune until the interest holder is entitled to immediate possession of the land and up until that point, the interest holder has no right of action

1) Liens, easements, equitable servitudes: Any title acquired by AP remains subject to such interest

f. Purpose: Protect title, land records, bar stale claims, reward those who use the land productively and honor expectations

g. Possessor’s rights: She can evict a subsequent possessor who takes possession away from her

h. Cotenant: In order to begin adverse possession, the cotenant in possession must unequivocally claim sole ownership by either physical ousting or taking steps that notify cotenants of the claim

i. Landowner/Tenant: If the tenant repudiates his status as a tenant claims title to the land

j. Government: Adverse possession does not run against the government

0) Some states changed the common law rule: Allowed AP if it is on the same terms as private land, if the possession continues for a period longer than applied in the case of private land and some only allow it against government lands held in a proprietary capacity

Policy of Adverse Possession: Premised on utility

a) Limitations period: It minimizes the risk of judicial error in determining title and helps protect the true owner from frivolous claims and it guarantees stability of the possessors title which encourages the possessor to place the land in optimum productive use

b) Administrative: It is a useful method of curing minor defects and protects the title of the adverse possession

c) Development: It facilitates economic development

d) Efficiency: The adverse possessor grows more attached to the land and the absentee owner becomes increasingly detached from it so it focuses on avoiding injury to the adverse possessor

a. Punishes those who sleep on their rights

Cases of Adverse Possession

1) Theory and Elements of AP

a. Van Valkenberg v Lutz: Open and Notorious- Title to a parcel may vest in an AP who occupies under a claim of right, protect parcel by enclosure, improves or cultivates

b. Manillo v Gorski: Adverse – Rejection of Maine Rule for Connecticut Doctrine: To claim title by AP, the possessor need not have been aware that the land in question was in fact owned by another

c. Howard v Kunto: Tacking- Where several successive purchasers received record title to one tract under the mistaken belief that they were acquiring another tract, immediately contiguous thereto, and where the possession of the second tract is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to allow tacking and thus establish adverse possession as a matter of law

Estates in Land and Future Interests

Spranking Introduction

1- Estates:

a. Present: Legal interest that entitles its owner to the immediate possession of real property. Ownership is o

nt to perform ceremonial or personal services to the king, like to provide a splendid courtlife or pageantry for knights.

d. Incidents: In addition to services, each free tenant owed the lord various obligations, together called the incidents of tenure. They were burdened to the land

i. Four types of incidents during the tenant’s lifetime:

1. Homage: Ceremony where the tenant became a vassal

2. Fealty: The oath by which the tenant promised his loyalty

3. Aids: Tenant’s duty to provide financial support to the lord on specified occasions

a. Four situations: Ransom for lord’s captors, knighting of eldest son and marriage of eldest daughter

4. Forfeiture: The return of the land to the lord if the tenant was disloyal or failed to perform the required service

ii. Four types of incidents at the tenant’s death: These became more valuable than tenurial service or the lifetime incidents

1. Escheat: If a tenant dies without heirs, the land would return to the king who would regrant it to another noble

a. Modern law: If you die intestateà escheats to the state

2. Relief: Custom arose and later there was an obligation that at the death of the tenant in chief, his land passes to his eldest son and the heir was required to pay a fixed sum called relief to obtain the land

a. Modern law: Inheritance tax

b. Life expectancy was short: Thus the lord expected to have incidents 1-4 years over a period of time

3. Wardship and Marriage: They applied only to knight service and sejeanty tenures

a. Wardship: Allowed the king to have possessor of A’s land until the minor boy reached 21 and during this period the king was entitled to the rent and profits from the land

i. Compensation: For loss of military services

b. Marriage: Allowed the lord to sell the right to marry the heir and the minor can refuse marriage but was then required to pay a substantial fine

i. Purpose: To keep the heir from marrying the enemy

2- Subinfeudation: It was the creation of sub-tenures by a tenant. Each occupies a particular niche or status in the feudal pyramid.

a. Result: One parcel of land can be subject to many tenures- Thus many people could own property rights in the same land at the same time

b. Possession:

i. Tenant in demesne: Holds rights to present possession

ii. Tenant in chief and mesne: Hold future interests

iii. Escheat: If the demesne lord dies without heirs, it escheats to the mesne

c. Analogous: To subleases

d. Example:

i. Tenant in chief C: C holds knight service of 50k of land, C is required to provide 5 equipped knights to the king.

ii. Mesne lord: A can grant use of 5k to M, one of his knights in knight service. M would be required to provide one knight to C and would also owe C feudal incidents

iii. Tenant in demesne: M may subinfeudate 1k acres to D in socage tenure, receiving in return the fixed sum of 1000 pence per year and feudal incidents

3- Evolution of Estates: Over time, feudal tenures withered away under pressure of economic and social changes, replaced by modern estates of land.

a. Changes:

i. Warfare: It was sparked by a decline in the value of feudal services based on the technological changes in warfare that rendered knights obsolete and knight service to become irrelevant

ii. Inflation: Inflation eroded the purchasing power of money so socage tenures with fixed monetary payments lost value.

1. Wardship, marriage and escheat: The feudal incidents that were tied to the possession of land retained value since the value of land rose with inflation

2. Incidents became far more valuable