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Property II
South Texas College of Law Houston
Gershowitz, Adam M.

Professor Gershowitz
Fall 2006
E-mail:                                                                                                                                                                    (H) 832.252.6560
Office: Room 618                                                                                                                                                                              (C) 713.213.1421
                                                                                                                                                                                                               (O) 713.646.2946
ACQUISITION BY Adverse Possession
Theory and Elements of Adverse Possession
1.       Actual entry giving exclusive possession of the land
1.       must actually physically possess the property with the same degree of occupancy and use as average owner would use that type of property
a.       ie., if the owner has guests, you can have guests; if the owner goes on vacation, you can go on vacation
2.       must exclude true owner
3.       possession cannot be shared with the owner or the public
4.       if a landowner does not bring action to eject an adverse possessor within the statutory period, the owner is thereafter barred from bringing an ejectment action.
a.       10 year SOL=>O owns & A enters in 1990. It’s the year 2002. A is considered to have taken title in 1990.
                                                                                                                                       i.      Relation-Back Doctrine
1.       When you are considered to be the owner at the time you’ve entered the property as soon as you meet all the elements. So, in 2000 he is considered to have been the owner in 1990.before the SOL runs, the AP has all the rights of a possessor, but has no legal interest valid as against the true owner
2.       Open and notorious
1.       visible possession so as to put owner reasonable notice
2.       reasonably inform an attentive landowner that someone is on the property
3.       Possession must be adverse and under a claim of right
1.       has to be against the true owner’s interests (a.k.a. “hostility”)
2.       claim of title requirements
a.       objective standard (punishes people from sleeping on their rights)
b.       good faith belief you own the property
c.        aggressive trespasser standard—you knew you didn’t own the land but you didn’t care
4.       Continuous for the statutory period
1.       appropriate to the subject land—can be seasonal
2.       unchanged type of use important
3.       the possession of one person can be tacked to that of another if there is privity between them
Reasons for Adverse Possession
1.       Quiets title (establishes ownership); will tell us who owns the land
2.       Promote beneficial use of land
1.       Earning theory: rewards person making beneficial use of the land
3.       Penalizes person sleeping on their rights
1.       Sleeping theory: encourages attentive ownership
4.       Settles disputes; encourages persons to make improvements
5.       Furthers expectations of the adverse possessor
1.       Economic theory: it is more economical to let the AP have the land than to try to determine who is the true owner
Van Valkenburg v. Lutz (1952)—Lutz purchased lots 14 and 15 in 1912; behind Lutz’s lots were lots 19-22 that D used only for access to his property at first then later built a shed, a chicken coop, and gardened selling the vegetables to his neighbors; in 1937 Van Valkenburg purchased lots 31 and 32; lots 19-22 were in between Ps and Ds properties; P purchased these lots in 1947 and erected a fence across P’s access-way to his property; D sued P, admitting P owned the lots but claimed a right of access across it; D lost because he did not occupy P’s land under a claim of title required in AP
1.       To acquire by AP, one must clearly and convincingly show that for at least X years there has been actual occupation of the land (enclosing the land or cultivating or improving) under a claim of title
2.       Once an AP has an interest in land, it takes more than a mere statement or act to convey it back to former owner. Nothing you can say will change the fact that you adversely possess the land. 
1.       PROBLEM p. 142. A and B own adjacent lots. A erects a fence on B’s lot 3’ beyond what she thought was common boundary; fence stays for SOL; A owns the strip of land by AP; B surveys and notifies A of the mistake so A “to avoid a hassle” tears down her fence and erects a new one on the real boundary; three years later A talks to a lawyer, changes her mind and sues to eject B from the 3”; A wins because she owns the 3’ by AP and thus so, B has to meet his SOL too which he has not (3 years no SOL for AP)
Manillo v. Gorski (1969)—D entered land under K to purchase; in 1946 D’s son made some improvements to her home including building concrete steps to replace the wooden steps; D steps encroached on P’s property by 15”; the land was conveyed in 1952; P filed complaint seeking injunction against D’s alleged trespass; D counterclaimed seeking DJ to determine D had gained title by AP; entry and continuance of possession under mistaken belief that possessor has title to the land involved exhibits the hostile possession required to obtain title by AP
1.       Mistaken Boundaries
1.       Maine Doctrine—AP claimant must have intent to take the land regardless of whether or not it is his (aggressive trespasser) (rewards trespasser for trespassing v. rewarding somebody honestly making a mistake); minority view
2.       Connecticut Doctrine—no intentional hostility required (objective standard—intent irrelevant); majority view
2.       The element of “open and notorious” possession may not be met where the encroachment is of a small area or where the intrusion requires an on-site survey; no presumption of knowledge arises from a minor encroachment along a common boundary, actual knowledge required; only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious
3.       Remedy—owner can be forced to convey the land to D if:
1.       AP’er must be innocent trespasser
2.       small encroachment
3.       encroachment is:
a.       costly
b.       impractical to remove
c.        removal will cause great hardship
4.       AP’er must pay for value
5.       No serious damage results to the land
4.       Whether or not the AP is mistaken, the owner is ousted from possession; if he fails to attempt to recover possession within the requisite time, it is probably the result of lack of knowledge that he is being deprived of lands to which he has title
5.       Any entry and possession for the required time that is exclusive, continuous, uninterrupted, visible and notorious, even under mistaken claim of title, is sufficient to support a claim of title by AP
Constructive Adverse Possession—if someone else owns the land, you can only adversely possess what you can physically enter
Color of Title—claiming title via written instrument; an instrument or act that has the appearance of granting title to the claimant but in reality falls short of establishing it (e.g., forged deed); must have an actual entry
Boundary Disputes—most courts apply the objective test to determine if one of the parties has acquired title to the disputed strip of land by adverse possession; ie., by putting up a fence and using the land for the necessary number of years, the party can acquire title to the land
1.       Doctrine of Agreed Boundaries—if there is uncertainty between neighbors as to the true boundary line, an oral agreement to settle is enforceable if the neighbors accept the line for a long period of time
2.       Doctrine of Acquiescence—acquiescence for a long period of time is same as an agreement because you did something and the other person didn’t object; like a silent agreement
3.       Doctrine of Estoppel—if one neighbor makes representations about location or engages in conduct that tends to indicate the location of the common boundary and the other neighbor changes her position in reliance on the representations or conduct, the first neighbor is estopped from denying that’s where the boundary is
The Mechanics of Adverse Possession
Howard v. Kunto (1970)—Howards and Kuntos hold property in a summer resort area where houses are used primarily for summer occupancy; Ps owned land one lot away from Ds; when Ps tried to convey land to 3d party, they found the title they held was to the adjacent lot (most other land owners too); Ps brought action to quiet title; court held that since D owned land for > 1 year and the principle tacking was not established, the title was quieted in Ps; Ds appeal; J reversed
1.       The fact that the land was only used in summer months makes no difference in establishing AP
2.       Continuous Possession
1.       when possessor maintains possession for the statutorily required period of time and the property is used in a customary manner; ie., summer cabins, farming someone else’s field for enough years
3.       Tacking
1.       allowing AP to tack the time he is in possession onto that of his predecessor in interest’s period of AP
2.       there must be privity of estate between the two APs
3.       once there is an entry against an owner, AP begins and isn’t defeated when ownership changes through will or intestacy
a.       American Rule—AP’ers cannot tack unless there is privity
b.       English Rule—AP’ers can tack regardless of privity
                                                                                                                                       i.      Privity—voluntary transfer of property from one to another
4.       PROBLEM
a.       O owns
                                                                                                                                       i.      1987—A enters
                                                                                                                                      ii.      1994—B kicks A off, A leaves and B enters into possession
                                                                                                                                    iii.      1997—who owns? O owns under American Rule; under English Rule B owns
5.       PROBLEM (continued)
a.       1994—A leaves under threat of force
b.       6 months later—A recovers possession from B
c.        If O does nothing, will A own Blackacre 10 years and 6 months from the date of entry in 1987
6.       PROBLEM
a.       O owns-10 year SOL
                                                                                                                                       i.      1981—A enters
                                                                                                                                      ii.      1982—O devises to B for life, Rm to C
                                                                                                                                    iii.      1997—B dies without ever having entered upon Blackacre
                                                                                                                                    iv.      Who owns Blackacre? A
7.       RULE—you adversely possess the estate you enter upon; once there is an entry upon an owner, AP begins and possession is not defeated or interrupted by subsequent transfers by the owner, whether by conveyance, will or intestacy
8.       RULE—Adverse possession is against the possessory estate; so whatever estate is the possessory estate is what the AP’er will get unless the future interest holders are put on interest
4.       Improvements and Encroachments (buildings and fixtures erected without right)
1.       Compensated equal to market value of improvements or permitted removal of the improvements
2.       Landowner may have choice to pay for improvements or convey land at market value to improver
3.       If building not entirely on neighboring land but partially on wrong lot is usually not considered fixture
4.       If encroachment result of innocent mistake, courts tend to look at relative hardships of parties granting or denying injunctive relief
5.       If removal is difficult or expensive for the intruder compared to inconvenience to landowner, injunctive relief usually denied and only damages awarded
6.       Where inconvenience trivial, some courts deny all relief
7.       If encroachment is willful or intentional, most courts issue injunction requiring removal of encroachment regardless of convenience or hardship
8.       Party who intentionally encroaches does so at own peril
5.       Disabilities
1.       An action to recover the title to or possession of real property shall be brought within 21 years after the cause of action, but if a person entitled to bring such action at the time the cause of action accrues, is within the age of minority, of unsound mind, or imprisoned then that person may bring a COA within 10 years after such disability is removed
2.       Disability is immaterial unless it existed at the time the COA accrued
a.       PROBLEM
                                                                                                                                       i.      1967—O owns Blueacre; O insane
                                                                                                                                      ii.      5/1/67—A enters
                                                                                                                                    iii.      1990—O dies insane and intestate; O’s heir H under no disability
                                                                                                                                    iv.      When would A acquire title? 2000
                                                                                                                                      v.      H gets to sue because he’s the successor in interest in the property
b.       PROBLEM (continued)
                                                                                                                                       i.      O’s heir H is only 6 years old
                                                                                                                                      ii.      still has to sue by 2000 because disabilities can’t be tacked (legal guardian)
c.        PROBLEM

supervision; recording documents is act that constitutes practice of law
Exceptions to Statute of Frauds (to the writing requirement), absence of writing does not mean that there was no C, it just means that we an ignore the writing requirement.
1.       part performance (varies by jurisdiction) Rest 2d Contracts Par. 129
1.       possession); and
2.       either payment of all or substantially all of the purchase price, or
3.       improvements
2.       estoppel
1.       party seriously changes position to detriment;
2.       in reliance on K;
3.       resulting in unconscionable injury
Dif b/w I & ii: I you actually partly performed a deal (have to show evidence that there was a C, and reliance on it)
Hickey v . Green (1982)—writing requirement for C for sale. Ps put deposit on D’s lot after oral agreement for sale of $15,000; D accepted $500 check marked by P on back with “Deposit….Subject to variance from Town of Plymouth;” P’s told D to fill in name of payee left blank because of uncertainty of who to make it out to; D held check but did not endorse it, and did not fill in payee’s name; Ps sold their house and accepted a deposit check; D told Ps she had decided to sell lot to another for $16,000; Ps offered D $16,000; D refused; P sought specific performance; court found for Ps; D claimed SOF barred relief and appeals; Holding: K for transfer of interest in land can specifically be enforced if no compliance with SOF if party seeking enforcement reasonably relied on K and has so changed position that injustice can be avoided only by specific performance. See Rest 2d Contracts Par. 129. Rest sees H(1) as evidence of C’s existence enough to prove K’s existence. When D-nt actually admits to oral agreement, (h 2), requirements are different: all Hickey has to do is to show some reliance not related to the deal. And it will go to the measure of Dmgs.
Green is a classic opportunist, Crts do not like them. D must be held to her end of the bargain Crt will always try to fit it into the exception, or try to punish them in any other way.
How to argue on exam:
1.       Oral Cs related to the sell of land subject to St of Fr, with certain exceptions:… Exs for part performance kick in if its unequivocally related to the C. To prove which, the party has to show:
a.       payment of all or substantially all of the purchase price (rarely stands alone); and
b.       possession (can stand alone); and/or
c.        improvements (can stand alone)
Hickey will loose under that. But:
The dif rule if the oral promise is clearly proven. Usually, it is clear when the seller admits to it ,and Hickney gets Green to do it. then all Hickey has to do is to show some reliance not related to the deal. Which is what he does.
Dmgs: B/c it’s related to the sale of land, the Buyer is entitled to seek specific performance. (Order ordering .. to sell the house). Or: Dmgs:
Remedy: land is unique, we turn to equity for Dmgs.
Pr. 2 p. 477:
O to A is valid transaction, A to O – violates the St of Fr.
“whiting out” might not be enough to satisfy th St of Fr.
There are default rules of C-ing in Real Estate, but because of htat, you can C around them. C is a controlling doc until closing, at which point the deed gets signed, and the deeds controls.
Walker v. Ireton (1977)—seller didn’t know buyer was going to sell his farm; court didn’t grant specific performance
1.       Problems
1.       O owns Blackacre and executes and delivers a deed to her daughter A as a gift; deed not recorded; then O tells A she would like Blackacre back so A hands deed back to O and says “the land is yours again;” O tears up the deed; O owns Blackacre
2.       B gives S check for $5,000; B would not be able to rescind unless S has misrepresented the condition or has violated a duty to disclose or violated implied warranty of habitability; LET THE BUYER BEWARE
3.       Suppose B can obtain loan secured by mortgage on $150,000 but B expected S would be able to obtain $175,000 loan; can B rescind? No, unless waiver in K stating “conditioned upon B obtaining financing”; B screwed; LET THE BUYER BEWARE
Marketable Title—title that a reasonable person would have no doubts that title was valid and a person would be willing to pay FMV; free of defects; implied in every sale of real property that title is free from doubts; one which a willing person would be willing to buy; B can rescind if title not marketable. Needs to be presented before closing. But: it’s a C stage, you can C around.
1.       Lohmeyer v. Bower (1951)—P K to buy house; D to provide good marketable title subject to all restrictions of record; abstract of title showed the original subdivider imposed restriction requiring that any home erected on the lot to be 2 stories (the existing home was 1 story); also, zoning ordinance required no frame building could be erected within 3’ of lot line (existing house 18” of lot line); P brought suit to rescind the K; D counter-sued for specific performance. Tr. Crt: judgment for Bower (SP Performance). App. Crt: reversed & remanded with directions to cancel & set aside the C and render such judgment that might be equitable. The violation of the private and public restrictions renders title unmarketable; private covenants or restrictions (height requirement) may constitute encumbrances rendering title unmarketable unless waived; pre-closing: violations of zoning ordinance = encumbrances (K stage)
1.       Encumbrance—burden on title that would make a reasonable person doubt that they have full title; encumbrances make real property unmarketable
2.       Restrictive covenant—promise that restricts; ie., single family housing, easement; more easily found
3.       Real Covenants
a.       Encumbrances (unless waived) = unmarketable title
b.       Real covenants = encumbrances (unless waived)
c.        Real covenants = unmarketable title