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Property II
South Texas College of Law Houston
McGreal, Paul

The Law of Real Property—Richard R. Powell (1996)
Adverse possession—a method of transferring interests in land without the consent of the prior owner.
The elapse of a reasonable time should assure security to a person claiming to be an owner.
Title by Adverse Possession—Henry W. Ballantine (1918)
Several reasons for policy
Demerit the one out of possession
Reward those using the land in a way beneficial to the community (exploiting value of land)
Quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing. (promotes certainty)
The Path of the Law—Oliver Wendell Holmes (1897)
A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act & trying to defend yourself, however you came by it.
Posner—economic efficiency to let adverse possessor keep land—it costs more to determine who the true owner is.
Adverse Possession
o        Another way to acquire property [discovery, find, gift, creation, capture] o        Similar to prescriptive easements
o        Related to the statute of limitations—wait too long & claim decreases.
o        Comes from cases (early) & statute—property code or code of civil procedure
Adverse Possession
Being in exclusive possession for a period of time with
1.        open & notorious,
2.        continuous,
3.        claim of right,
4.        hostile/adverse, and
5.        under color of title (some jurisdictions).
Open & Notorious—use the property the same way the owner would use it.
o        serves to put the true owner on notice that someone is using the property.
Continuous—can’t be intermittent, but doesn’t mean constant (ex: use summer cottage each summer). 
Claim of Right / Claim of Title—in some way the adverse possessor indicates he owns the property (state of mind test)
o        Majority—good faith or bad faith doesn’t matter.
Hostile/Adverse—not a state of mind, not psychological hostility. It means that you are there without the true owner’s permission. 
Color of Title—Texas & Florida have this. You have some document (usually written) that you rely on to believe the land is yours. 
o        The 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. (Adverse possession applies to personal property as well as land).
o        Adverse possession clears up title of bad deeds.
o        Constructive possession—possession of a reasonable amount is a possession of the whole part.
Who can be a true owner?
§         Adverse possession doesn’t work against a concurrent owner (TIC, JT)
§         Adverse possession works against an ouster.
§         Adverse possession does not work against the holders of future interests until they become possessory.
EX: to A for life, then to B. A goes to Malta & C enters. B has no rights until A’s life estate ends. C has A’s life estate pur autre vie. 
o        Adverse possession does not run against those with a legal disability (insanity, minority) that exists at the time of the inception of the adverse possession.
§         As an adverse possessor, I can add my period to someone before me who was also an adverse possessor. Need privity between 1st adverse possessor.
§         You CANNOT tack disabilities to defeat a claim of adverse possession.
Exceptions to when adverse possession doesn’t work
§         Government owned land (common) EX: house in park for 100 years—NO
§         Land registered under the Torrens system (certificate similar to car title)
Policy behind adverse possession
§         Promotes certainty of title (quiet title)
§         Rewards those using the land in a way beneficial to the community (economic activity)
§         Earning theory—adverse possessor has earned the right to the land
§         Sleeping theory—true owner is sleeping on his rights (punishes sleeper)
§         Ellickson—cognitive psychology—think of land as mine
§         Moral/reliance
§         Rewards those who pay taxes & improve land.
Van Valkenburgh v. Lutz, Court of Appeals of NY 1952
o        In 1912 the Lutz’s (Mary & William) bought lots 14 & 15 in Yonkers.
o        They cleared a travel way & built a home for Charlie on other land by 1920.
o        Van Valkenburgh’s bought lots 19, 20, 21, & 22 at a foreclosure sale in April 1947.
o        Trial court awarded right-of-way to Lutz’s & affirmed in June 1948. Lutz’s conceded.
o        Lutz then claims adverse possession. Denied by court.
o        Dissent—object of statute—“is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim & be thereby called upon to assert his legal title.”
o        Prescription gives rise to the rights of use, such as rights of way and other easements, but title to the land remains in X—different from adverse possession.
o        To acquire title to real property by adverse possession—for 15 years there was an “actual” occupation under a claim of title by (1) a substantial inclosure or (2) usually cultivated or improved.
o        Occupation was not under a claim of title.
o        Courts have a series of r

d adverse possession for 20 years.
o        Is an entry & continuance of possession under the mistaken belief that the possessor has title to the lands involved, exhibit the requisite 1. hostile possession & 2. open & notorious to sustain the obtaining of title by adverse possession?
INTENT  Preble v. Maine—rewards possessor who enters with premeditated (a knowing taking) & predesigned hostility (intentional wrongdoer) forces perjury
§         Connecticut—whether or not the entry is caused by mistake or intent, the same result eventuates—the true owner is ousted from possession.
§         Doesn’t care about the state of mind of the trespasser
§         Physical act begins statute’s running.
§         Supports the “sleeping theory” true owner needs to be aware
o        HOLDING—any entry & possession for the required time which is exclusive, continuous, uninterrupted, visible & notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession. {easier test}
o        To permit a presumption of notice in the case of minor border encroachments would place an undue & unequitable burden on the true owner. (requires land surveys)
o        Only where the true owner has actual knowledge thereof may it be said that the possession is open & notorious. Majority—any reasonable true owner would know.
o        Even if small, courts will assume open & notorious element is satisfied.
o        Hostility—focuses on action of the encroacher at a minimum it is a physical act—occasionally focuses on encroacher’s state of mind.
o        Notorious—focuses on true owner & the rest of the world—what does the true owner know about the encroacher’s actions & do those actions give enough notice so that true owner would know to bring a trespass action?
1. A & B own adjacent lots. A puts a fence where she mistakenly believes the boundary line to be. A acts as owner. A acquires title by adverse possession. B tells A the fence is in the wrong place & A tears it down. A hires a lawyer 3 years later & sues to eject B.
A should get the land because title can’t change simply by changing fences.