PROPERTY
CALO
SPRING 2013
ACQUISITION OF PROPERTY
I. Acquisition by Find
a. Vocab:
i. Chattel: personal property (opposed to real estate)
ii. Replevin: asking for the return of the thing itself
iii. Trover: an action for value in money vs. the real thing
iv. Locus in quo: place where the thing was found
v. Conversion: a common law action of the tort of using another’s property as one’s own
vi. Constructive possession: intending to possess everything on the land that you own but not knowing what everything is.
1. Example: Sunny would be a prior constructive possessor if you found a diamond ring in his house.
b. General Rule: Title of Finder is good against the whole world except for the true owner or a prior possessor.
i. Prior possessor: someone who is not the true owner but had the item in his possession prior to the person who has the item in his possession currently. Prior possessor prevails against a subsequent possessor.
ii. Policy: it protects the most likely avenue to reunite the owner with the lost item.
iii. Possession: a finder must acquire physical control and have the intent to assume dominion over the object.
c. Process:
i. What was found?
ii. What are the circumstances of the find?
1. Lost: owner or prior possessor was separated from the item involuntarily
a. Goes to finder unless finder is a trespasser or if owner of the locus en quo has prior possession that might be constructive based on the thing that is found
b. If fossilized goes to the owner of the property
c. As to natural resources, a surface owner also owns the minerals underneath, such as coal or gold.
d. The first driller to tap and produce oil or natural gas from a pool underlying the lands of several owners has acquired possession of the resource brought to the surface
e. Agency: if people acting as agents find something on your property then you could possibly lay claim to that item
1. Mislaid: property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later
a. Belongs to the owner of the locus en quo until the true owner is located b/c it is more likely to be reunited with the true owner.
b. Many judges will award even lost property (& mislaid property) to the owner of the premises if the object was found in a private place
2. Abandoned: intentionally abandoned property by the true owner is awarded to the finder since the true owner has relinquished rights
3. Treasure Trove: must be money or money equivalent. NOT including jewelry and other valuables.
a. CL: goes to the finder as opposed to the owner of the location of where it was found
b. However, if you can prove that you were an heir to a person that hid the treasure, then you can claim it
c. The true owner can come back to claim the treasure
d. Shipwrecks: isn’t abandoned, but salvor only gets the boat if there is no other claimant (including insurance companies); salvors are entitled to a salvage fee
e. Abandoned Shipwreck Act: if the wreck is submerged in water belonging to the US, it belongs to the state in which it was found.
iii. Who is claiming the item(s)?
1. Finder v. True Owner – true owner always wins
2. Finder v. Prior Possessor – prior possessor prevails against all but true owner
3. Finder v. Owner of Locus (premises)
a. General Rule: finder is entitled to possession as against all but the true owner unless property was found in a highly private place
b. Employees, generally cannot keep a found object; neither can persons on the premises for limited purposes (like contractor, etc.). Treasure trove can belong to either find or the landowner, depending on jurisdiction
c. Object found in:
i. Private home: goes to homeowner
ii. Public place: depends on whether item was lost, mislaid, or abandoned
1. Lost – finder would usually win; unless finder is a trespasser or the owner of locus could show that they had prior possession (including constructive possession)
2. Mislaid – goes to the owner of the locus en quo
3. Abandoned – then to the finder
II. Acquisition by Adverse Possession: a process through which a person who uses property for a statutorily determined period of time (usually 10 years, used to be 20) becomes the owner of the property and defeats all rights of the person with legal title.
a. Policy: penalize true owners who sit on their rights for too long
i. Reward the person who uses property for a long time, maybe improving it, and is known in the community as the property owner
ii. AP law serve structural purpose – facilitating the efficient transfer of property
b. The Theory and Elements of Adverse Possession
i. Actual Entry Giving Exclusive Possession: triggers the cause of action (starts the SOL).
1. Constructive Possession of Part: If entry is only on part of the land, the possessor is in constructive adverse possession
2. Exclusive Possession: must have exclusive possession; cannot share possession with the owner or the public generally. But, 2 or more people acting in concert, and among themselves, can acquire title by adverse possession as TICs.
ii. Open & Notorious: the adverse possessor’s use of the property is so visible and apparent it gives notice to the legal owner that someone may be asserting adverse claim to the land. Notice needs to be the type that would give an ordinarily prudent person notice of possession. Act from which the community could infer that the actor is claiming ownership.
1. Farmland: fencing, cultivating, and building are open and notorious
2. Open possession of an underground cave is NOT notorious
3. City Land: erection of a fence or building may constitute AP. Totality of acts must give a picture of a person claiming dominion.
4. Minerals: AP of the surface includes possession of the minerals beneath. However, if minerals have been severed by sale to another prior to entry of the adverse possessor, possession of surface does not carry possession of minerals
5. A minor border encroachment is NOT open and notorious; Only where the true owner has actually knowledge of the encroachment may it be said that the possession is open and notorious
iii. Adverse and Under a Claim of Right: claim of right means the adverse possessor is acting adversely to the owner
1. Objective Test: simply that the adverse possessor uses the occupied property without the true owner’s permission, and inconsistent with the true owner’s legal rights. Need not claim title, but must occupy the land w/o permission. (majority opinion)
2. Good Faith View: some jurisdictions interpret claim of right to mean the possessor has a good faith/bona fide belief that he has title. If the possessor knows he has no title, his possession is not adverse. So a squatter, therefore, cannot be considered adverse.
3. Mistaken Belief: if the possessor mistakenly believes that he was title but, if he knew the truth, would not claim title, he is not occupying adversely. (in boundary disputes)
4. Color of Title: some sta
possessor and purchaser is privity of estate: a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession (contract of sale, gift, or inheritance).
a. Ex. If adverse possessor for 7 years A wills estate to B, B’s SOL on the adverse possession is already fulfilled to 7 of the 10 years needed through privity of estate and tacking.
5. There must be some sort of reasonable connection b/t the successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or possessor – intentional or consensual transfer.
6. If the possessor did not receive the property through a voluntary transfer (i.e. ousting), there is NO privity.
7. If the true owner interrupts the adverse possessor, the statutory period starts anew. If someone other than the true owner interrupts, adverse possessor can string periods of possession together.
a. In most states, actual interruption can occur w/o having any intent to oust the adverse possessor.
b. If the owner’s acts are ordinary acts of ownership and would give notice of claim to the average person, they are interrupting. (presumption – the use of the land by the owner is the exercise of this right to use it, and therefore when the owner uses the land, such use presumptively asserts ownership).
8. When analyzing exam questions, evaluate each fact situation to determine when the use is significant enough to start the running of the statute.
c. The Mechanics of Adverse Possession
i. Mistaken Improvement:
1. If the mistake is innocent, owner is usually required to sell the land at fair market value or the owner must pay the fair market value of the improvement.
2. If the mistake is not innocent the encroacher must remove it.
ii. Howard v. Kunto
iii. Problems: Tacking
1. Can bits of different people be tacked together?
2. Can something be tacked onto something that doesn’t exist?
iv. Disabilities:
1. Many states provide that the statute of limitations for an adverse possession claim will not run against a true owner who is under a disability when the adverse possession commences.
2. Considered disabled: infants, mentally ill, persons in prison, military servicemen, those who are absent from the state
3. If a true owner of property is under a disability, the SOL will not run against her until the disability is removed. The statute is considered tolled.
4. 3 guided principles of disabilities:
a. The disability must exist at the beginning of the adverse possession. If it arises after the SOL, it will not toll the SOL.
b. There is no tacking of disabilities. If a true owner under a disability when the adverse possession begins falls under a second disability during the time of the adverse possession, the statute is tolled only during the continuance of the first disability
