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Property II
South Texas College of Law Houston
Ortiz, Francesca

Professor Fran Ortiz
Summer 2002
        ACQUISITION BY Adverse Possession
Theory and Elements of Adverse Possession
                                                               i.      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
                                                              ii.      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
                                                            iii.      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
                                                             iv.      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
                                                               i.      Quiets title (establishes ownership); will tell us who owns the land
                                                              ii.      Promote beneficial use of land
1.       Earning theory: rewards person making beneficial use of the land
                                                            iii.      Penalizes person sleeping on their rights
1.       Sleeping theory: encourages attentive ownership
                                                             iv.      Settles disputes; encourages persons to make improvements
                                                              v.      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
                                                               i.      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
                                                              ii.      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
                                                               i.      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
                                                              ii.      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
                                                            iii.      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
                                                             iv.      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
                                                              v.      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
                                                               i.      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
                                                              ii.      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
                                                            iii.      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
                                                               i.      The fact that the land was only used in summer months makes no difference in establishing AP
                                                              ii.      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

                                                     ii.      5/1/67—A enters
                                                                                                                                    iii.      1985—O dies intestate
                                                                                                                                     iv.      O’s heir H is 2 years old
                                                                                                                                      v.      A will own Blueacre in 1988 because the disability doesn’t apply; it wasn’t present at the time of entry; 1967 + 21 years is 1988
d.       PROBLEM
                                                                                                                                       i.      1967—O owns Blueacre; O is 5 years old
                                                                                                                                      ii.      5/1/67—A enters
                                                                                                                                    iii.      1977—O becomes insane
                                                                                                                                     iv.      1992—O dies insane and intestate
                                                                                                                                      v.      O’s heir H has no disability
                                                                                                                                     vi.      1990 because only disability that counts is disability at time of entry; disabilities can’t be tacked
                                                             vi.      RULE
1.       death removes a disability
2.       at the point the disability is removed, the 10 year provision starts ticking
3.       disabilities can’t be tacked
4.       disability must be present at entry
5.       if there are two disabilities, take the longer of the two
Prescriptive Easements
Othen v. Rosier (1950)—use by express or implied permission, no matter how long continued, cannot ripen into a prescriptive easement; D consented to P’s use of the land so P does not have a prescriptive easement
                                                               i.      Easement
1.       limited use of someone else’s land (phone, cable, electric, water companies have an easement across your land to lay and maintain pipes, lines, etc.)
2.       generally is for a right of way
3.       same elements present for AP also there for easements
                                                              ii.      Differences between AP and PE
1.       AP is to own the land
a.       possessory interest
b.       exclusive possession
2.       Prescriptive easement is to use the land
a.       non-possessory interest
b.       non-exclusive possession
                                                            iii.      Elements of Prescriptive Easements
1.       actual entry
2.       “exclusive use” (can’t share the use with anyone else)
3.       open and notorious
4.       “adverse”
5.       continuous use of another’s land for the statutory period
                                                             iv.      Prescription by the Public—Jurisdictions vary:
1.       some say – no prescription allowed
2.       others say – yes, we will allow prescription by a large, definable group, but only if:
a.       strong proof of adversity
b.       different use than that made by general public
3.       Public itself can prescribe but owner must be on notice, by the kind and extent of use, that an adverse right is being claimed by the general public and not by individual
To prevent a prescription, effectively prevent them from using it or give th