adverse possession
TRANSCRIPT
Basic Requirements At the core of adverse possession is a statute
of limitation Statutes of Limitation bar suits after some
period of time after the cause of action accrues Why a Statute of Limitations
– Stale claims– Memory of witnesses– Plaintiff lacks seriousness– Judicial administration
Basic Requirements
In context of actions to recover possession of real property
Cause of action accrues at the time the wrongdoer enters and takes possession of the property
Cause of action for possession differs from cause of action for trespass– In trespass, there is a wrongful entry, not wrongful
possession
Basic Requirements-Judicial Gloss Actual Open and notorious Continuous Exclusive Hostile and under claim of right
– (claim of right not the same as color of title)
Underlying Policies
Penalize true owner for sitting on rights too long
Reward possessor for productivity
Jarvis v. Gillespie-Facts
Waterville acquires title in 1935 from estate of true owner
In 1947, plaintiff purchased the adjoining land
Jarvis v. Gillespie-More Facts
Between 1947 and 1986 plaintiff wrongfully used defendant’s land to
– graze cattle, park vehicles, logging operations, store wood
– plaintiff maintained fence, tapped trees, planted trees, cut trees
– posted “no trespassing signs” In 1986 Waterville (the record title owner) conveys to
defendant Plaintiff sues for declaratory judgment that it owns disputed
land
Jarvis v. Gillespie-Test of Actual
Use of land as a reasonable owner would use the land--not necessarily its highest and best use--“Possession gauged by actual state of the land”
“Simply because a parcel may be susceptible to uses other than those to which the claimant chose to put it does not necessarily lead to the conclusion that the claimant failed to act toward the parcel as an average owner would have” (Page 167)
Jarvis v. Gillespie-Test of Continuous Occupant needn’t be present at all times “The kind and frequency of the acts of
occupancy, necessary to constitute continuing possession, are dependent on the nature and condition of the premises as well as the uses to which it is adapted.” (Page 168)
Seasonal possession– Cabin in Colorado
Jarvis v. Gillespie-Test of Open and Notorious Acts are open and notorious “if they are
conducted in a manner which would put a person of ordinary prudence on notice of the [adverse] claim
Jarvis v. Gillespie-Test of Hostility Not the same as ill-will “Adverse possessor intends to claim the land
and treat it as his own– Objective hostility
– Subjective hostility
Jarvis v. Gillespie-Adverse Possession against the State How, in this case, can the possessor acquire an
adverse possession against the state given the general rule that one cannot acquire a title by adverse possession against the state (government)?
Open and Notorious
A enters O’s land. While A’s act appear to fall short of being sufficiently open to put an ordinary person on notice, in fact, O has actual notice of A’s possession. A’s possession is otherwise actual, continuous, exclusive and hostile. If O sues A after the statutory period has run, who wins?
Tacking
What is the meaning of tacking in the context of adverse possession?
O owns Blackacre– A enters in 1980– A sells “his right, title and interest, if any” to B in
1984– B goes into possession of Blackacre – O sues B in 1992– Who wins? (If it depends on what does it depend?)
More on Tacking
What other connections between A and other successors in possession would give rise to tacking– Gifts, bequests, mortgages
• Oral/Written/Permissive
– Ousters
Problems (a)-(f) on page 186
Tolling
What is the concept of tolling Typically, what sorts of disabilities qualify for
tolling– Minority (under the age of 18)
– Mental incompetency
– Imprisonment
– Soldiers and Sailors
An action to recover the title to or possession of real property shall be brought within twenty one years after the cause of action accrued, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person, after the expiration of twenty one years from the time the cause of action accrues, may bring the action within ten years after the disability is removed.
Tolling (The Ohio Statute)
Problems Page 175
Problems, Page 188
Rightful Entry; Wrongful Staying
Typically, AP enters wrongfully and stays wrongfully
Co-tenants Tenant/Landlord Life tenant/remainderman Heirs and devisees
Hostility and under Claim of Right Objective vs. Subjective hostility
Watch what I do Not what I say
Mannillo v. Gorski-The Questions Under the Maine rule, if A testifies he thought
he’d built up to the true boundary line, who would own the blackened strip?
Under the so-called Connecticut rule, would A’s state of mind matter?
Why does the court reject both the Maine and Connecticut rule?
What rule does the court substitute for them?
Carpenter v. Ruperto
What are the facts of this case? Plaintiff claims title to disputed 60’ strip on
which she had planted bushes, installed a propane tank, constructed a dirt tank to divert water, and built a driveway for over a 30 year period
Which criteria does defendant claim plaintiff failed to satisfy?– Claim of right
Carpenter v. Ruperto-Holding
What does the court hold?– Court adopts the “good faith” test to the effect that a
person who knows he does not have title cannot acquire a title merely by possessing the property
Carpenter v. Ruperto
Is the court’s analysis convincing in light of the policies underlying the doctrine of adverse possession?
What would plaintiff have needed to acquire a title by adverse possession?– Color of title
Color of Title-Adjoining Lots
AP enters Lot 1 under deed describing Lots 1 and 2
21 3 4
O owns lots 1-4
Suppose O owned Lot 1 and O-1 owned Lot 2
AP enters Lot 1 under deed describing Lots 1 and 3
Solomon R. Guggenheim Foundation v. Lubell What are the competing possibilities for when the statute of
limitations should run?– From time of theft– From time painting comes into hands of a BFP– Discovery
• Actual• Reasonably should have discovered• Cessation of diligent search
– Demand and refusal• But, s.Subject to reasonable diligence IN searching for lost
art(rejected) Federal Certification procedure