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Property II
South Texas College of Law Houston
Ortiz, Francesca

Summer 2014 – Property II (Ortiz)
Acquisition By Adverse Possession
Adverse possession – Actually taking the FSA
·   Using the land (like a driveway) – Someone is a trespasser, uses someone’s land, and gets title to that land
·   AP is a transfer of title, but they don’t get a deed record – Once AP quiets title, then everyone will know they have title
Adverse Possession has 4 elements:
1.      Actual entry and exclusive possession (you can’t share with actual owner)
2.      Open and notorious (notice to owner that you’re trespassing – obvious that you’re there)
3.      Adverse and under a claim of right (or “Claim of Title”)
4.      Continuous for statutory period
Actual physical entry – Have to use it for what it’s used for—if it’s a beach house; have to use it as beach house
Notice – If owner doesn’t know you’re there, how could they try and evict you should they want to
Adversity – You’re in conflict w/ the owner
Continuous – Allowed to leave, act like a normal owner…it’s a pattern of occupation…gives the owner time to find it
Issues you run into w/ continuous are abandonment and interruption
·         Can’t abandon – Thinking you’re never coming back
o  If it’s a period of interruption might be different – Harder to show…suppose you’re a couple years in to SOL, competing AP threatens you with bodily injury, you leave for 6 months, you buck up the courage and come back…what result?
·   Can you finish the term and add 6 months to end to make a complete SOL?
“Adverse and under a claim of right (or claim of title)”
A.     Adverse – Hostile to the rights of the true owner
B.     “Claim of Right” or “Claim of Title” – Interpretation varies by jurisdiction
Issue that arises is what kind of intent is needed
1.   No intent standard—merely adverse to owner and intent is irrelevant;
2.   Hostile (aggressive) Trespasser standard—completely adverse and no thoughts that you own it (“I know it’s yours and I don’t care”);
3.   Good faith standard—where you think you own it (“I thought it was mine”)
Reasons for Adverse Possession
1.   Expectations (b/c of long use, earning theory)
2.   Lashes/ Punishment (for sleeping on title)
3.   Beneficial use of land
4.   Quiets title
Relation Back Doctrine – Once acquired, title relates back to the date of the event that started the statute of limitations running (i.e., date of entry), and the law treats the entrant as the owner from that date
Example of a Relation Back
·      Assume a 30-year SOL
·      O is the record owner of Blueacre
1.      1980 – A enters Blueacre
2.      2010 –A meets all elements of AP
When is A considered the owner of Blueacre?
Answer: 1980   (Note: could they get you for back taxes?)
Claim of Right (Title) – Claimant is in possession as owner, with intent to claim the land as his own and not in recognition of, or subordination,
Color of Title – Claim of possession based on a written instrument that is defective in some way (i.e. apparent title)
Claim of Right – depends on jurisdiction
1.   Objective standard – more modern view – intent irrelevant
2.   Aggressive trespasser standard – small minority of jurisdictions follow – can’t think they own it, and going to take it anyway…you know it’s not yours
3.   Good faith standard – taking something they thought they owned the land (mistake)
·         If AP essay, and jurisdiction is not specified, examine under all approaches for Claim of Right
·         If MC question, jurisdiction will probably be specified (under aggressive trespasser standard…)
“Color of Title”
·         Claim of possession based on a written instrument (like a will or deed or a judgment or decree) that is defective in some way
·   “Color of title” – – i.e., the documentation showing that you “own” the land, would provide proof of a “good faith claim”
Is “color of title” the ONLY method of satisfying a good faith claim under the claim of title element of adverse possession?
If not, which other methods may one satisfy this element?
·   No. The adverse possessor could provide testimony that he honestly thought he owned it.
o  For example, that he was mistaken in where the true boundaries were, etc.
How else is color of title used other than to satisfy this element?
·      Color of title is also used to establish ownership of a larger parcel of land than the adverse possessor occupies
o  For example, O owns a 100 acre parcel of land. A sells the parcel to B with a deed that purports to convey 100 acres. B moves onto the land, but only cultivates 40 acres. Assuming O is not living or using any of the other land, after the statutory period expires, B could use his deed to show that he “constructively possessed” the entire 100 acres
Constructive Possession
(In AP context) – court deems AP’er to have possession of whole by virtue of color of title, even though AP’er may have only entered [art of tract (but only in absence of other claimants)
O is the record owner of Blueacre a 100 acre tract but is not in possession
Z conveys a deed for Blueacre to A
A enters and farms back 40 acres
Under constructive possession, he owns all 100 acres since no one else is in possession—only true if no one else who owns and is not there
Problem 1
1970- O is record owner and in possession of Blueacre a 100 acre tract
1980 – A acquires a deed from Z for Blueacre/ A enters and farms back 40 acres
2010 – A sues to evict O from Blueacre
Result: A gets only back 40 acres
Problem 2
Same facts, O’s deed is invalid
(So O and A both have invalid deed)
Result: same result…both O and A have adversely possessed from whoever owned it before O
Problem 3
X owns Lot 1 and Y owns lot 2, neither one is in possession
Z conveys lots 1 and 2 to A under invalid deed, enters lot 1 and enters and uses as expected
A then sues to quiet title against X and Y, result?
A is not on Y’s land, so can’t sue Y for anything
Problem 4
A receives a deed from X, not Z
A enters lot 1 and Lot 2
A then sues to quiet title against X and Y, result?
Constructive Possession
1.   Entry is required to claim AP under the idea of constructive possession
2.   Entry must be against the person claiming superior title
3.   If another person is on the lot, no AP of that portion of the land
Quiet Title (Cause of Action) – When you’re trying to get ownership declared, you’re trying to get quiet title action.  You do not have to quiet title to get AP
Removing Cloud on Title – Removing something
Van Valkenburgh v. Lutz
·         Brief Fact Summary – Appeal reg

·         Issue
o   Whether an entry and continued possession under the mistaken belief that the possessor has title to the lands involved, exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession
o   Whether the Defendant’s acts meet the standard of open and notorious
·         Synopsis of Rule of Law
o   Entry and possession of land for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under a mistaken claim of title, is sufficient to support a claim of title by adverse possession
o   In order to be open and notorious, a minor encroachment along a boundary line must be known by the true possessor of the land
·         Holding
o   Remanded
o   Yes, a mistaken belief that the possessor has title to lands involved, exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession

o   No presumption of knowledge arises from a minor encroachment along a common boundary, unless the true owner has actual knowledge there of the possession
o   Acquisition of title by adverse possession requires possession that is open and notorious, actual and exclusive, continuous and hostile for the statutory period of time
o   A mistaken belief that the land in possession is the possessors land will satisfy the hostility requirement
o   If the encroachment is upon a common boundary and is only minor, the factors of open and notorious will not be satisfied unless the true owner of the property knew about the encroachment
Encroachment – In this case, there was not a property line marked by a fence…just A’s property runs into B’s property
What is the requisite intent to establish a claim of right in the case of mistaken boundaries?
·         Maine doctrine—where AP claimant must have an intent to claim the land even if the reason for the claim is based on mistake
·         Connecticut doctrine – no knowing, intentional hostility required
When is an encroachment Open and Notorious?
·         How is the neighbor, B, supposed to know A is possessing their land…how does B know A is using their land? Do a survey every time?
1. No presumption arises if there is a minor encroachment—(less than several feet) along a common boundary
·         Can’t presume a foot or so is open and notorious and neighbor had notice
·         They probably didn’t have notice
2. Actual knowledge is required
What’s the problem with this standard?
·   AP doesn’t like this standard
·   It’s bad b/c it creates litigation
·   Also, what are several feet? 3? 10?
·   This is why it leads to litigation