Select Page

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

I. Adverse Possession
a. Theory and Elements
i. Theory: If, within the number of years specified in the state statute of limitations, the owner of land does not take legal action toe eject a possessor who claims adversely to the owner, the owner is thereafter barred from suing in ejectment, the adverse possessor has title to the land.
ii. Van Valkenburgh v. Lutz
1. Facts: Lutz purchased two lots. They made improvements on the land. There were four lots adjacent to the west of the lots they had purchased (19-22). The Lutz’s used these lots to access their property (a “travel way”). Mr. Lutz also grew vegetables on the lot, placed a chicken coop there, built his brother a little house, threw junk on the lot, etc. The Van Valkenburghs moved in. Some bad blood developed between the Van Valkenburghs and the Lutz’s. The VV’s purchased lots 19-22 in 1947. They asked the Lutz’s to clear their stuff off the subject premises and built a fence around the property, including the “travel way.” Lutz files suit and admits that the VV’s own the property, but that he has a right to an easement on the property. He wins. The VV’s bring a second litigation in order to force the Lutz’s to remove encroachments on the land. The Lutz’s counterclaim by saying that they had adverse possession of the land.
2. Issue: Where Lutz’s actions sufficient to put the true owner on notice of his claim to the title? (Rensberger disagrees with the court and says yes)
3. Rule: Possession must be: (a) an actual entry giving exclusive possession that is (b) open and notorious, (c) adverse and under a claim of right, and (d) continuous for the statutory period.
4. Holding/Reasoning: a. actual entry? There was no enclosure, the cultivation was not enough; c. adverse? No, they did not prove that Lutz had the state of mind of a hostile aggressive trespasser, there was little evidence of a good faith mistake (i.e. knowing Charlie’s house was not on his land and admitting it, admitting in a previous case that the VV’s owned the land), Lutz’s admittance in the previous case that the VV’s owned the land – This was some evidence of Lutz’s state of mind, he did not have the mental state that he thought he owned it (didn’t have the good faith)
iii. “an actual entry giving exclusive possession”: Cause of action does not accrue until entry on the land; serves as notice; serves to show what is being claimed; to trigger the cause of action
1. don’t have to be using every square inch of the property all the time to trigger the SOL
2. Define: The sort of entry and exclusive possession that will ripen into title by adverse possession is use of the property in the manner that an average true owner would use it under the circumstances…
3. What are the characteristics of an “average true owner?”
iv. “open and notorious:”
1. Define: Acts must be such as will constitute reasonable notice to the owner that she is claiming dominion, so that the owner can defend his rights. Generally acts are those that look like a typical act of an owner of property; acts from which a community, observing them, would infer the actor to be claiming ownership.
2. Purpose: to put owner on notice
3. What if it is the use of a cave underneath someone else’s property?
a. The Marengo Case said the use was not open and notorious; no adverse possession (weird case)
b. To start adverse possession running against the owner of the minerals, the adverse possessor must start removing them.
4. What about encroachments are only inches over the line?
5. fact intensive
6. The acts must be appropriate to the condition, size, and locality of the land
7. Some states have statutes requiring specific kinds of acts for adverse possession.
v. “adverse and under a claim of right” (most important, most difficult, and most litigated part)
1. Define: State of mind requirement; Different mental states:
a. aggressive trespass (“I know I don’t own it, but I intend to make it mine”)
b. good faith (“I am there because of a mistake”)
c. objective standard (whether or not the person subjectively intended to be an adverse possessor, if they satisfy all the elements they get it).
i. Actions important
2. Majority position in the U.S.: It is irrelevant what the state of mind is
a. If our focus in adverse possession is on disfavoring the actual owner, we don’t actually care about the adverse possessor’s state of mind
b. If our focus in adverse position is rewarding the adverse possessor, we favor the good faith state of mind.
c. If our focus in adverse position is on efficient and productive use of land, the objective standard applies.
3. Real policy? A mixture of all three
4. Usually can’t win when the adverse possessor actually intended to trespass, steal, etc.
5. Color of Title
a. Confusingly similar to the phrase “claim of title”(a way of expressing the requirement of hostility or claim of right on the part of an adverse possessor ), but different; satisfies the adversity requirement
b. Define: 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.)
c. Helpful when?
i. Constructive Possession
1. Actual possession under color of title of only part of the land covered by the defective writing is constructive possession of all that the writing describes.
2. Limitations:
a. 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
b. actual possession must occur (that can trigger constructive possession of different parts of the same lot)
6. Boundary Disputes
a. Claim of right issues often arise between adjoining landowners where one of the parties has been in open and notorious possession of a strip of land along his boundary, mistakenly believing it to be his.
b. Views:
i. Maine Doctrine: If the possessor is mistaken as to the boundary and would not have occupied or claimed the land if he had known the mistake, the possessor has no intention to claim title and adversity is missing.
ii. Objective: (Majority) claim of right applied; possessor’s mistake is not determinative; if his actions appear to the community to be a claim of ownership he is not holding with permission of the owner.
iii. Mannillo v. Gorski
1. Facts: 1946 – the encroachment begins; defendant has steps that go out 15 inches onto plaintiff’s property (plaintiff bought the property in 1953); SOL was 20 years; Plaintiff sues def for trespass; Defendant counterclaims she has title to the 15 inches by adverse possession;
2. PH: Trial court found for plaintiff, because they found that the defendant did not have sufficient state of mind, def had mistake; the NJ courts at the time followed the Maine doctrine which allowed for the aggressive trespasser state of mind.
3. Issue: Whether defendant had gained adverse possession.
4. Rule: When the encroachment of an adjoining owner is of a small area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey for disclosure, the encroachment is not open and notorious. SOL only runs if owner has actual knowledge

ivity of estate.
1. What effect does an ouster by X have on A’s adverse possession rights?
a. A can tack her prior possession onto her later possession, but the statute is tolled during the period of X’s possession.
iii. Policy: Don’t reward a series of trespassers; kind of an anti-squatting policy; title by adverse possession is something to be gained by meritorious conduct.
b. The typical tacking case is the party seeking to establish title by adverse possession claims more land than that described in the deed. (Buchanon)
c. 2 other types – tacking by a series of adverse possessors (Kunto type) and tacking by successive owners
d. English Rule: APs can tack regardless of privity (effect: rewards trespasser; punishes LO)
i. Sleeping theory: punish the person sleeping their rights
ii. Earning theory: reward the person who had made good use of the land.
e. Once there is entry by an AP, the possession will not be defeated or interrupted by subsequent transfers of the land unless the transferee sues to eject (you’re tacking)
f. Once AP has begun to run against O, it runs against O and all of O’s successors in interest.
i. Adverse possessor adversely posses only the estate upon which he entered (unless the future interest holders have notice that their interests are being AP…if they do, they can sue the life tenant for waste, but no to eject b/c only current possessor can sue to eject).
g. Tacking is not permitted where one adverse possessor abandons the property, even though another enters immediately.
vii. The running of the statute of limitations not only bars an action by the erstwhile owner but also vests a new title, created by operation of law, in the adverse possessor. Once acquired, this new title “relates back” to the date of the event that started the statute of limitations running, and the law acts as though the adverse possessor were the owner from that date.
1. Title acquired by adverse possession cannot be recorded because it does not arise from a recordable document but rather from operation of law. Thus, if the adverse possessor wishes to have his title and name as owner recorded, he must file a quiet title action against the former owner barred by the statute of limitations.
viii. Policy Arguments for adverse possession:
1. quiet title
2. encourage efficient/productive use of the land
a. reward the adverse possessor for being productive
3. expectations/reliance/psychological factors
a. of the adverse possessor
b. of those relying on the adverse possessor
4. disfavor a neglectful owner
5. bar stale claims – require a lawsuit to be brought to oust a possessor while the witnesses’ memories are still fresh.
ix. Just can’t walk away and orally disclaim property once the title has ripened or been gotten by adverse possession.
b. Mechanics
i. In some states, paying taxes is a requirement for adverse possession.
In all states, payment of taxes