Adverse Possession

Read the Redbook (Bergin and Haskill page 1-121) or the Greenbook (Moynihan

in its entirety)

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

Blackacre

Have you read the Redbook or the

Greenbook for the first time.

If not, do it tonight?

Jarvis v. Gillespie

What are the facts of this case?

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?

Marengo Cave

Welcome to Marengo Cave

O

A

A=Adverse Possessor

O=True Owner

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 Facts

O A

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?

Mannillo v. Gorski-Condoning Perjury Interviewing the client

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

Innocent Improver Doctrine

O A

A

What are the options?

Color of Title

A

B

A

AP enters to the right of line A-B under Deed describing all of Blackacre

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 facts of this case?

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