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
t 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
