Section 1: Subsequent Possession: Acquisition by Find, Adverse Possession and Gift
I – Acquisition by find
A – Rights of Finders
1 – True Owner: General Rule – Owner of property does not lose title by losing property – she is still the owner. The true owner’s title is superior to that of everyone else, including the finder.
2 – Finder: General Rule – has title and rights to lost property superior to all but the true owner. There are some notable exceptions to this rule.
a – Prior possessor’s claim is better than subsequent possessor (Armory v Delamirie – chimney sweep w/ jewel taken by jeweler) -rule applies for land as well as personal property. – TO (true owner) > F1 > F2
b – Finder does not acquire ownership – he is entitled to possession as against everyone but the true owner
c – Possession is good title against everyone except those w/ better title
d – Theoretically true even if finder acquired property by trespass or theft
3 – Title is Relative: True Owner prevails over finder, finder prevails over subsequent possessor
a – If TO shows up they can recover possession. If TO shows up after possession sold by Finder they can go after either Finder for ($) or F2 (possession)
B – Finder v Owner of Premises
1 – Landowner has constructive possession of everything that is on the surface or under the surface of their land, even if they didn’t know it was there.
a – Constructive possession – court treats person as if he is in possession although he in fact, is not or is unaware he has possession,
b – If court finds landowner was in constructive pos. of something on premises of which he was unaware landowner is entitled to benefit of the “prior possessor wins” rule. First possession.
2 – Sometimes court finds constructive possession, sometimes it does not
a – This is assuming owner of the premises does not actually own the object, if he did he would prevail over finder.
b – If finder is trespassers or thief – owner of land where object found prevails
c – If finder is Employee of property owner or contractor – owner of land where found prevails
d – If finder is on land for limited purpose (cleaning out drain, etc) owner gets found objects
e – If object found in store or public place
1 – If object lost, goes to finder, not premises owner
2 – If object only mislaid goes to premises owner
f – Object found under the soil goes to owner of premises, not finder
1 – Treasure trove exception – goes either way
g – Private home – usually goes to homeowner
1 – Exception: If the owner has not moved in to the house he is held not to be in constructive possession of objects on the land of which he is not aware – Hannah v. Peel
3 – Public Place: Lost v. Mislaid Distinction
a -Lost – property owner accidentally lost – lost property goes to the finder not the owner of the premises
b – Mislaid – property intentionally placed somewhere and then forgotten, mislaid property goes to the owner of the premises
c – Abandoned – property intentionally abandoned by true owner who no longer claims any right to it – abandoned property is awarded to the finder
4 – Purchaser can’t get better title than that of the person who sold it
II – Adverse Possession (AP = Adverse Possessor)
1 – Doctrine under which longstanding occupation of another’s property ultimately enables one to obtain title to that property.
2 – Basic theory: If owner of land does not take legal action to eject a possessor who claims adversely to the owner w/in the number of years specified in the state statute of limitations, the owner is barred from bringing an action for ejectment and the adverse possessor acquires title to the land.
3 – Statutory limit -number of years landowner has to sue to eject someone in wrongful possession of property.
A – Elements of Adverse Possession
1 – Four elements to obtain title by adverse possession.
a – Actual entry – giving exclusive possession
b – Open and notorious possession.
c – Adverse and under a claim of right
d – Continuous for the statutory period.
2 – Actual Entry Giving Exclusive Possession
a – Statute of limitations starts running when Adv. Possessor (AP) makes an actual, physical entry onto the property
b – Possession must be exclusive of true owner (TO can’t be there)
1 – Large lot, and AP enters on one corner, TO never comes to the “back 40” – AP gets that corner
3 – Open and Notorious
a – Must be the sort of possession that would reasonably inform an attentive landowner that someone is on their property.
b – It is not a requirement that actual notice be given.
c – Seasonal occupation of a vacation home might be enough
d – Some state statutes require specific acts for adv. possession. NY law says that a claimant w/out color of title can only claim by adv. poss. where land has been protected by a substantial enclosure or has been usually cultivated and improved (Van Valkenburgh v. Lutz)
4 – Adverse and under a claim of right
a – Minimum requirement: That you are there without permission. If you have permission it is NOT adverse. Must be there w/out owner’s consent.
b – Implicit permission difficult to prove, TO can’t say AP was there w/permission just because TO owner knew and didn’t sue to eject
c – TO can protect their interest by giving AP a lease
d – AP can refuse permission
5 – Tests for adversity: Objective and Subjective tests
a – Objective Test: majority of states follow this
1 – Intent of AP doesn’t matter
2 – What did AP say or do? Did AP appear to be claiming property as their own? Courts look at the situation – not at the state of mind of AP.
b – Subjective Test(s) – Intent matters – minority of states follow this (these states do care what the state of mind of the AP was – actual intent to claim as your own is required.
1 – Good Faith Required – Honestly thought it was theirs, didn’t know of TO
ial to acquiring title by adverse possession in a few.
b – Gives important advantages to the AP: possession under color of title of only part of land, is considered constructive possession of all the writing prescribes. You thus get more land then actually occupied.
c – GENERALLY if you do not have color of title you have to have physically occupied in some way, the land that you are going to get.
2 – Possessor w/invalid title gains title to everything described in deed, not just what they occupied – AP is in constructive possession of all land described in the deed.
a – If AP knew deed was false they won’t get benefit of Color of Title – must have good faith belief through out period of statute of limitations
b – If AP had some doubts, depends if jurisdiction requires strict good faith – if you find out deed is fake before the statute of limitations runs you lose the good faith requirement
1 – This can cost AP benefits of color of title – lose constructive possession
3 – What if there are Two Adverse Possessors
a- Actual possession trumps constructive possession, at end of statutory period
1 – Color of Title is not retrospective, AP1 has invalid title, AP2 has none – at end of statutory period (both running on same clock) AP1 can’t sue to eject AP2
b – However w/in statutory period holder of invalid title can sue to eject AP w/o any deed
4 – Area claimed through Color of Title must be in reasonable proportion to area actually occupied
5 – AP must use significant portion of land described in deed
6- If Deed describes more than one lot
a – AP can get title to both if:
1- AP in possession of part of one lot and lots are contiguous and owned by same owner
2 – Area claimed must be in reasonable proportion to that actually occupied
E – Tacking – adding one’s period of possession to prior possessor’s to establish continuous adverse possession for the statutory period.
1 – Only instances where you can’t tack on the prior claim
a – Where the second person took over against the will of the first person
b – Where AP1 just abandons the claim and AP2 takes over
2 – Needs to be some sort of connection between the two successive occupants. If AP1 and AP2 are in possession continuously between them and there is privity of estate between them they can add up their periods of possession (tack)
