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Property II
South Texas College of Law Houston
Rensberger, Jeffrey L.

Property II Outline
MODERN à Light Orange
CASES à Green
Chapter 3: Acquisition by Adverse Possession
A.      The Theory and Elements of Adverse Possession
–          Adverse possessor may acquire title at such time as an action in ejectment (or other action) by the record owner would be barred by the statute of limitations
–          Adverse Possession means of transferring ownership
–          (1) Actual Entry giving exclusive possession
o    Cause of action does not accrue until entry on the land
o    Serves as notice, shows what being claimed; triggers COA
o    Don’t have to use every square inch of property all the time to trigger SOL
o    Must use the property in manner that an average true owner would use it under the circumstances
–          (2) Open and Notorious
o    Acts must constitute reasonable notice to the owner that she is claiming dominion, so that the owner can defend his rights.
o    Generally acts are those that look like a typical act of an owner of property
o    Acts from which a community, observing them, would infer the actor to be claiming ownership
§ Purpose à to put owner on notice
o    Marengo Case
§ Cave underneath B’s property, A has entrance, opens for fee
§ Ct à not open and notorious b/c no adverse possession
§ To start adverse possession running against owner of the minerals, the adverse possessor must start removing them
o    What about encroachments are only inches over the line?
§ Fact intensive
§ Acts must be appropriate to the condition, size, and locality of the land
§ Some states have statutes requiring specific kinds of acts for adverse possession.
–          (3) Adverse (Hostile) and under a claim of right
o    Three Mental States:
§ (a) Aggressive Trespass
·         Bad faith required
·         “I know I don’t own it, but I intend to make it mine”
·         Almost completely abandoned (super-minority)
§ (b) Good Faith à Minority
·         Honest belief that property belongs to you
·         “I am there because of a mistake”
§ (c) Irrelevant à Majority
·         Objective Standard (state of mind is irrelevant)
·         Look at the acts and conduct of parties
·         Majority position in the U.S.
·         Focuses on Two Things
o    (1) Lack of Permission
o    (2) Whether the occupier’s acts and statements objectively appear to be claims of ownership
·         Note: if the adverse possessor disclaims ownership in order to persuade the owner not to sue, the possessor has stopped being adverse
–          (4) Continuous for the statutory period
o    Set period of time when title vests/ripens to adverse possessor
o    An adverse possessor must occupy continuously, w/out interruption, during the limitations period
o    Must occupy property as continually as would a reasonable & average true owner of the property
§ If possessor ever abandons the property—intentionally gives up possession with no intent of returning—continuity is destroyed
§ A later return triggers a new cause of action in the owner and new SOL period
o    The purpose of the continuity requirement is to give the owner notice that the possessor is claiming ownership, and that the entries are not just a series of trespasses
–          Relation Back:
o    If adverse possessor enters land at point in time 1 and satisfies elements of AP, at point in time 2 (when SOL runs), adverse possessor has fee simple absolute that goes back in time to point 1
o    Vests new title in adverse possessor relating back to date of event starting SOL running
o    Rule of Increase
§ Adverse possessor owns offspring even if offspring not part of SOL period
–          Van Valkenburgh v. Lutz
o    Lutz’s bought 2 lots, but used non-owned lots for right away and farming
o    VVs buy lots used by Lutz; erects fence
o    1st suit: Lutz sues for right a way use (prescription) – wins
o    2nd suit: VV sues for Lutz to remove encroachment
o    Issue à whether the acts of Lutz sufficient to put true owner on notice
o    Actual entry and possession
§ No clear proof of possession
§ Shack close to boundary / garage only a few inches over
§ Chicken shack portable / Junk thrown on land
§ Dissent: Property used as ordinary person would use it
o    Open and Notorious
§ Dissent: “charlie’s house, brush marked property lines)
o    Adverse
§ Lutz did not have state of mind of a hostile aggressive trespasser, there was little evidence of a good faith mistake
·         Admitting knowing Charlie’s house was not on his land
·         Admitting in a previous case that the VVs owned the land
§ Dissent: the property had already vested in Lutz before he made claim (can’t de-seisin property)
o    Continuous / Statutory period – was met
–          Three Major Public Policies / Justifications for Adverse Possession
o    (1) Sleeping Theory
§ Slothful owners, who ignore people using their land in brazen violation of legal right, deserve to be penalized
§ Punish the true owner not to sleep on his rights
·         Irrelevant mental state
o    (2) Earning Theory
§ People who use land productively and beneficially for a long time ought to be rewarded
§ Improvements to land
·         Rewards AP – benefits community
·         More good faith mental state b/c possessor contributes to land
o    (3) Stability Theory
§ Adverse possession enables disputes or doubts about land titles to be cleared expeditiously by delivering title to the person who has occupied the land as if she were the owner for a long time w/out objection
§ Quiet Title
·         Vest property in one owner and settled disputes
·         Maybe implied Good Faith
§ Adverse possessor has dependency / reliance on property
·         Irrelevant what intent was originally
–          Policy and State of Mind
o    If our focus in AP is on disfavoring the actual owner, we don’t actually care about state of mind
o    If our focus in AP is rewarding the adverse possessor, we favor the good faith state of mind
o    If our focus in AP is on efficient and productive use of land, the objective standard applies
§ Usually can’t win when the adverse possessor actually intended to trespass, squat, etc.
–          Color of Title
o    Confusingly similar to the phrase “claim of title” but different; satisfies the adversity requirement
§ [“claim of title” = a way of expressing the requirement of hostility or claim of right on the part of an adverse possessor] o    Refers to a claim founded on a written instrument (a deed, a will) or a judgment or decree that is for some reason defective and invalid
§ As when the grantor does not own the land conveyed by deed or is incompetent to convey, or the deed is improperly executed
o    Minority View àColor of title  required to satisfy the hostile element of AP
–          Constructive Possession
o    Single Parcel Ruleà Adverse possessors who enter under color of title are deemed to possess all the land described in the defective deed, so long as—
§ It consists of a single parcel, AND
§ The possessor has occupied a significant portion of the parcel
o    Limitations:
§ When the owner is in possession of a part; he has ownership of that part and constructive position of the part neither the owner nor the adverse possessor are using
§ Actual possession must occur (that can trigger constructive possession of different parts of the same lot)
§ Constructive possession is never as good as actual possession, so an adverse possessor entering under color of tile does not acquire title to land that, while described in the defective, is actually occupied by somebody else
o    Problem (pg 130)
§ (1a) O owns and has been in possession of a 100-acre farm since 1975. In 1990 A entered the back 40 acres under color of an invalid deed from Z (who had no claim to the land) for the entire 100 acres. Since her entry, A has occupied and improved the back 40 acres in the usual manner for the SOL period. A brings suit to evict O from the farm, claiming title by constructive adverse possession
·         A has ownership of the 40 acres through AP because actual possession
·         O has possession of the remaining 60 acres b/c actual possession trumps constructive possession
§ (1b) Suppose that in 1975 O took title farm under an invalid deed and has been in possession for period sufficient to SOL
·         O is first in time, so has superior title to A for the 60 acres
§ (2a) Two contiguous lots, 1 & 2, owned (not possessed) by X and Y, respectively. The lots are conveyed by an invalid d

in GF or not, becomes the property of the landowner
o    Modern Tendency
§ Eases the plight of innocent improvers
§ Forces a conveyance (at market value) of land from the owner to the improver
§ Variance: give landowner option to buy the improvement
o    Inconvenience to Landowner
§ If trivial then relief might be denied altogether
§ If encroachment takes up a substantial part of the land, removal might be ordered
§ Two Part Test
·         (1) Π has to show that it would suffer irreparable harm if removal were denied
·         (2) Balancing Test
o    Compares hardship to Π if removal denied to hardship to the ∆ if it granted 
–          Improvements and Encroachments (buildings and fixtures erected without right)
o    Compensated equal to market value of improvements or permitted removal of the improvements
o    Landowner may have choice to pay for improvements or convey land at market value to improver
o    If building not entirely on neighbor land but partially on wrong lot usually not considered fixture
§ If encroachment result of innocent mistake, courts tend to look at relative hardships of parties granting or denying injunctive relief
o    If removal is difficult or expensive for the intruder compared to inconvenience to landowner, injunctive relief usually denied and only damages awarded
§ Where inconvenience trivial, some courts deny all relief
o    If encroachment is willful or intentional, most courts issue injunction requiring removal of encroachment regardless of convenience or hardship
o    Party who intentionally encroaches does so at own peril
B.      The Mechanics of Adverse Possession
–          Howard v. Kunto
o    Dispute over a piece of land. ∆s occupy a tract of land (A) that is not described by their deed. Instead, their deed described an adjacent tact (B). 
o    ∆’s various predecessors in interest also mistakenly occupied A instead of B for more than 10 years. Π’s wanted to sell their tract of land which was located next to A, so they hired a surveyor who discovered the mistake
o    Action instituted to quiet title. TC’s reason for denying ∆’s claim to adverse possession was b/c they and their predecessors was b/c they and their predecessors only used it in the summer and it was not continuous
o    The requisite possession requires such possession and dominion as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition
§ Nature of the property (i.e. summer homes) , the fact that it had been occupied for 10 years, and the existence of improvements on the land and beach area constituted “uninterrupted” possession with this rule
§ Continuity – as long as you are using it in some way that improves, etc the property 
o    Tacking: Could tack on b/c they were in privity (a reasonable connection) with the previous owners, they had good faith, they parted with some value, and improved the property
§ Underlying policy concern that would prevent tacking is not implicated here
–          Tacking
o    TackingàAdverse Possessor
§ If privity of estate exists btw prior possessor and present possessor tacking is permitted
§ Privity of Estate
·         The voluntary transfer from the 1st possessor to the 2nd possessor of either an estate in the land or actual possession of it.  
o    Different from servitudes privity of estate
·         English cts don’t require privity for tacking to occur b/c sleeping theory is enough