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Property I
SUNY Buffalo Law School
French, Rebecca R.

Professor French
Spring 2011
Requirements of Adverse Possession (Judge-made Law) :
1) Actual entry giving Exclusive possession that is
2) Open and Notorious,
3) Adverse [Hostile] and under a Claim of right, AND
4) Continuous for the Statutory period.
Powell – Real Property
۰         Statutes of limitation – fix the period of time beyond which the owner of land can no longer bring an action or undertake self-help, for the recovery of land from another person in possession.  
۰         Adverse Possession – the adverse possessor may acquire title at such time as an action in ejectment (or other action for possession of real property) by the record owner would be barred by the statute of limitations.
–          Functions as a method of transferring interests in land with out the consent of the prior owner, and even in spite of dissent of such owner.
Ballantine – Title By Adverse Possession
Purpose of Adverse Possession:
1.       To automatically quiet all title which are openly and consistently asserted
2.       To provide proof of meritorious titles
3.       Correct errors in conveyancing.
Conveyancing – the branch of law practice consisting of examining titles, giving opinions as to their validity, and drawing of deeds, etc., for the conveyance of property from one person to another.
Holmes – The Path of the Law
What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?
Foundation for this justification is to be looked for in the position of the person who gains them, not in that of the loser.
۰         It is in the nature of man’s mind. 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 by torn away without your resenting the act and trying to defend yourself, however you came by it.
۰         Therefore, owner who allows disassociation to occur must be aware of this, and it is at his own risk if he did not stop it.
–          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.
–          Length of statute of limitations for adverse possession: 20 yrs. Used to be common, but modern trend is to shorten to period of 6 – 10 yrs.
VAN VALKENBURGH V. LUTZ, 1952 (triangle patch w/ garden)
Action: Right of way to Van Valkenburgh’s (П’s) property.
Remedy Sought: To compel the removal of certain encroachments upon П’s lands, for delivery of possession and incidental relief.
Facts: Lutz (Δ) bought Lots 14 & 15 situated on a hill. To west was triangular tract of land [Lots 19-22]. Instead of climbing the steep hill to reach their lots, the Δ’s partially cleared Lot 19 and built a one-room structure for the brother on Lot 19, and a house for themselves on 14 & 15 by 1920. Also on the triangular tract was a garden which Δ tended. In 1947, П’s bought Lots 19-22, and after a dispute told Δ to clear off the property. Δ claims that he had a prescriptive right to use the traveled way to reach his property [also in previous suit, alleged that П was owner of property, but he had right of way over the traveled way].
Procedural Posture: 1) Δ brought action against П for right of way over П’s property in Trial Court; verdict in favor of Δ. 2) Decision in favor of Δ was affirmed by the Appellate Division.
– Defendant asserted that they had acquired title to the subject premises b/c they had held and possessed the land adversely for around 30 years.
GENERAL RULE: To acquire title by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least 15 yrs. there was an “actual” occupation under a claim of title, for it is only the premises so actually occupied “and no others” that are deemed to have been held adversely.
[Civ. Prac. Art. §34, 38, 39].
        The essential elements of proof are either that the premises:
1)                   Are protected by a substantial inclosure, OR are
2)                  Usually cultivated or improved
                                [Civ. Prac. Art. §40].
– The second element is relevant to this case; first does not apply as no proof of “substantial inclosure.”
Issue: Whether there is evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute.
– Cultivation did not utilize whole of the premises claimed and therefore did not satisfy meaning of “actually occupied.” (i.e. vegetable garden)
– Proof also fails to show that premises were improved. (i.e. small shed or shack and garage encroachment)
– Δ was not under “claim of title;” when he had the opportunity to declare his hostility and assert his rights against the true owner, he voluntarily chose to concede that П’s legal title conferred actual ownership entitling them to the possession of the premises.
Holding: the proof fails to establish actual occupation for such a time or in such a manner as to establish title by adverse possession. Therefore, judgment reversed in favor of П.
Dissent: Δ’s knowledge that did not have record title to the property is irrelevant; as long as he intended to acquire and use the property as his own. The nature of cultivation engaged in by Δ was more than adequate to give the owner notice of an adverse claim and to delimit the property to which the claim related. Δ satisfied requirement of “actually occupying” the land; language of statue should not be narrowly construed.
Abandonment Rule
If the adverse possessor abandons the property (leaves w/ no intention to return) before the statute has run, the statute stops, a new entry is required, and the whole process begins anew.
Interruption Rule
Interruption occurs either with a successful ejectment action brought against the adverse possessor by the owner, or owner re-enters the property. In case of the ejectment, the lawsuit interrupts the period of possession even if the owner does not thereafter actually oust the adverse possessor, who must start all over. If owner re-enters, it must be open and hostile and effective.
Claim of Title & AP State of Mind Approaches
1) ENGLISH APPROACH – State of mind is irrelevant [OBJECTIVE] Statute of limitations begins to run as soon as the true owner is dispossessed by someone inconsistent with his title.
2) State of mind is “I thought I owned it” [GOOD-FAITH] Courts may be more likely to award title to “good faith” trespassers rather than the trespasser who was fully aware of what he was doing.
3) State of mind is “I thought I didn’t own it, but I intended to make it mine” [AGGRESSIVE TRESPASS] It is necessary that the possession be adverse from the first.
Color of Title and Constructive Adverse Possession
Claim of title – hostility or claim of right of adverse possessor.
* Need for NYS
Color of title – claim founded on a written instrument (deed, will) or judgment or decree that for some reason is invalid (i.e. deed is improperly executed). “The appearance of title.”
–          Not req. by English Law nor in most American jurisdictions.
–          In some states it is essential to acquiring title by AP.
–          Other states which is not req., it can have important advantages for the AP such as shorter statute of limitations than AP w/out “color”.
Constructive possession – actual possession under color of title of only part of the land covered by the defective writing is possession of all that the writing describes.
–          Advantage of CP is that the activities relied up to establish AP reach not only the part of the premises actually occupied, by the entire premises described in a deed to the claimant.
MANILLO V. GORSKI, 1969 (boundary dispute)
Facts: Gorski (Δ) made additions to his house which encroached on Manillo’s (П) property by 15 inches.
Procedural Posture: 1) П filed complaint seeking mandatory and prohibitory injunction against trespass of their lands.  2) Δ counterclaimed for declaratory judgment – gained title through adverse possession. 3) Ct. found for П’s. 4) Δ appealed.
Δ  Argument:  steps encroach on П’s land 15 inches and states has title to that land through AP.
П’s Argument: Δ’s encroachment did not have requisite intention to invade П’s land; instead had mistaken belief that he owned the land. Therefore, cannot establish AP.
Maine Doctrine: Possession as an element of title by AP cannot be bottomed on mistake. Intention of the occupant to claim the ownership of land not embraced in his title is a necessary element of AP.
Connecticut Doctrine: No inquiry is made into the AP’s motives or purposes. The very nature of the act is an assertion of his own title, and denial of title to others. It doesn’t matter if the possessor was mistaken, and if had been informed, would not have entered on the land.
Issue 1: Whether an entry and continuance of possession under the mistaken belief that possessor has title to the lands involved, exhibits the req. hostile possession to sustain obtaining of title by AP.
Rule 1: Requirement of knowing, intentional hostility in AP is discarded. Entry and possession for the req. time which is 1) exclusive, 2) continuous, 3) visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of AP. Embraces Connecticut Doctrine.
Issue 2: Whether Δ’s actions were open and notorious.
Rule 2: No presumption of knowledge arises from a minor encroachment along a common boundary. Only where the true owner has actual knowledge. Thereof may it be said that the possession is open and notorious.
Holding: Remanded for new trial.
HOWARD  V. KUNTO, 1970 (mistaken deeds)
Action: Δ’s [Kunto] appeal from decree quieting title.
Facts: П’s [Howard] had thei

seums to inventory their Native American sacred and cultural objects and return them upon request of descendent or tribe.
– Museum may only keep if can show was obtained with consent of Native American owners (burden on museum).
E. Acquisition By Gift
Intention + Delivery = Gift
Donor must transfer possession to the donee  with the manifested intention to make a gift to the donee.
Oral evidence is sufficient.
Must be objective act.
Types of Delivery
1) Manual
2) Constructive – handing over key or some object that will open up access to the subject matter of the gift. [Ex. Key] 3) Symbolic – handing over something symbolic of property given. [Ex. Note which states “I give my piano to Marilyn”]  
Facts: Decedent was ill and on his deathbed, and asked his servant to call plaintiff into the room. He handed plaintiff keys and told her to take them and keep them, that he desired her to have them and everything in the house.
Remedy Sought: all furniture and other property in the dwelling house of decedent including life insurance policy of $3,000.
Action: suit against defendant as administrator to recover value of the property alleged to have been converted by him.
– Plaintiff argues that all of the items belong to her by reason of a donation causa mortis from decedent as well as insurance on piano and bedroom furniture by gifts inter vivos.
Requirements of donation causa mortis
1) Intention to make gift AND
2) Delivery of thing given
– Intention can be inferred from facts attending the delivery (what donor said and did), doesn’t have to be express terms. Must always clearly appear that he knew what he was doing and that he intended a gift.
Reasoning: Ct. will recognize constructive delivery, however where the articles are present and are capable of manual delivery, this must be had. Symbolic delivery is not recognized.
Holding: Bureau and other articles of furniture for which there are corresponding keys which were given to her, pass to plaintiff (as they were incapable of manual delivery). Plaintiff also gets $ from her bedroom furniture as a gift inter vivos. Plaintiff does NOT get insurance $, piano, or any other articles.
GIFT – causa mortis : a gift made in contemplation of and in expectation of immediate approach of death. It is a substitute for will. Criteria: have to die. *are REVOKABLE
–          Traditionally, very strict in application of this b/c saw it as undercutting safeguards of statute of wills.
–          Modern Trend, to enforce decedent’s intent if there is clear and convincing evidence of donative intent.
GRUEN  V. GRUEN, 1986 (Klimt painting and 21st Bday)
Facts:  Plaintiff’s father died and he tried to obtain painting which his father had left him for his 21st birthday. His father had written him a note saying he was giving it to him, but wanted to keep it at his house until the time of his death, and then it would belong to his son. Stepmother claims that his ownership is invalid.
– Action seeking declaration that plaintiff is rightful owner of painting which he alleges his deceased father gave to him.
Issue 1: Whether a valid inter vivos gift of a chattel may be made where the donor has reserved a life estate in the chattel and the donee never has had physical possession of it before the donor’s death. Title v. Possession [plaintiff had title but not possession].
Issue 2: If it may be made, which factual findings on the elements of a valid inter vivos gift more nearly comports with the weight of evidence in this case: trial or app. Ct.
Rule 1: Valid inter vivos gift = intent of donor to make transfer + delivery of gift (actual or constructive) + acceptance by donee.
Rule 2:  Proponent of gift has the burden of proving each of these elements by “clear and convincing” evidence.
– Recognizes symbolic delivery- decedent’s letter served as instruments of a gift. Also, manual delivery is not practical and is illogical.
Holding: Appellate Court decision is affirmed in favor of plaintiff.
Father = life estate
Son = remainder