PROPERTY
Adverse possession, BFP
law and covenants
Professor Joan C. Williams
Spring 2007
Oliver Wendell Holmes
I should suggest that the foundation of the
acquisition of rights by lapse of time is to be
looked for in the position of the person who
gains them, not in that of the loser. . . 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
be torn away without your resenting the act
and trying to defend yourself, however you
came by it. The law can ask no better
justification than the deepest instincts of man.
Richard Posner
This is a point of diminishing marginal utility
of income. The adverse possessor would
experience the deprivation of the property as
a diminution of wealth; the original owner
would experience the restoration of the
property as an increase in his wealth….If
they have the same wealth, their combined
marginal utility will be greater if the adverse
possessor is allowed to keep the property.
Richard Epstein
Every one knows… the rule of ordinary life
that applies to such prosaic matters as
waiting in line for theater tickets…:”first
come, first served.”…[I]t is the analytical
foundation for the entire system of
property…. The first possession rule
promotes a system of decentralized
ownership…[It] allows one to a system of
rights that is not dependent upon the whim
of the sovereign.
AP – written instrument
X Y
AP
BFP law: general rule
UCC §2-403
A purchaser of goods acquires all title
which his transferor had or had power to
transfer, except that a purchaser of a
limited interest acquires rights only to
the extent of the interest purchased.
BFP law: voidable title
– A person with voidable title has power to transfer
a good title to a good faith purchaser for value.
When goods have been delivered under a
transaction of purchase the purchaser has such
power even though
– (a) the transferor was deceived as to the identity
of the purchaser, or
– (b) the delivery was in exchange for a check
which was later dishonored, or…
– (d) the delivery was procured through fraud
punishable as larcenous under the criminal law.
BFP law: entrustment
• 2) Any entrusting of possession of goods to a
merchant who deals in goods of that kind gives him
power to transfer all rights of the entruster to a buyer
in the ordinary course of business.
• (3) “Entrusting” includes any delivery and any
acquiescence in retention of possession regardless
of any condition expressed between the parties to
the delivery or acquiescence and regardless of
whether the procurement of the entrusting or the
possessor’s disposition of the goods have been
such as to be larcenous under the criminal law.
Native American Graves
Protection and Repatriation Act
of 1990
• Museums must inventory and return unless they
can show
• “right of possession”
– possession obtained with the voluntaryt consent of an
individual or group that had authority of alienation
• if not, object can be reclaimed by a direct lineal
descendent of an individual who owned the
sacred object
To enforce the burden of a contract
as a covenant running with the land
• Intent to bind successors
• The covenant must touch and concern
land
• Privity of estate
• Horizontal privity
– GR-GE; L-T; dominant-servient
• Vertical privity
To enforce the benefit of a contract
as a covenant running with the land
• Intent to bind successors
• The covenant must touch and concern
land
• Privity of estate: vertical privity only