Adverse Possession

ADVERSE POSSESSION ADVERSE POSSESSION E—EXCLUSIVE ENTRY: Clock starts on AP when owner has notice of trespass. After SOL passes, AP gets title from date of original trespass. C—CONTINUOUS: usage as ordinarily marks conduct of owners in holding, managing, and caring for property of like nature. → INTERRUPTION: If adverse possessor abandons property or true owner interrupts possession by ejectment before statute has run, the statute stops and new entry is required. If adverse possessor leaves under threat of force and not abandonment, most courts will not restart clock, but rather add time removed because of threat to statute of limitations. H—HOSTILE: 1. Claim of right—opposed to true claim of owner; trespasser, not in subordinate title of true owner. 2. Intent  Majority—mental state does not matter; as long as you are trespassing, you are hostile. Minority #1—Good faith standard: “I thought I owned it.” Minority #1A—Good faith standard and color of title. Minority #2—Aggressive trespass standard: “I thought I didn’t own it, but I intended to make it mine.” (Jurisdiction may require payment of fair market value to owner.)    O—OPEN AND NOTORIOUS Marengo Cave Co. v. Ross 1937: A and B live over cave, A discovers entrance to cave and creates business selling access to cave. B sues to deny access to his portion of cave; A claims adverse possession. Rule: Because A’s possession was not open and notorious (B did not have actual knowledge of possession), no AP. ADVERSE POSSESSION BORDER ENCROACHMENTS Traditional standard: would a reasonable person have recognized encroachment? Manillo v. Gorski 1969: Concrete platform with steps and walkways encroach on Plaintiff’s land by 15 inches. Rule: If encroachment over several feet, only notice is required. If under several feet, true owner must have had actual knowledge. REMEDY: Normal remedy in ejectment is removal of item in trespass, but courts may make exception if it would require great expense to remove item and just require forced sale of land encroached upon. COLOR OF TITLE A claim founded on a written instrument, judgment, or decree that is for some reason defective or invalid. Advantage to AP under color of title in most jurisdictions: Shorter statute of limitations and control of one part of property is constructive possession of whole, as long as whole lot is owned by one person or lot it whole parcel. SQUATTERS Squatters are not adverse possessors, because you cannot adverse possess against the government. TACKING Combining use, possession, or time with that of another in order to satisfy statutory time period for gaining title; only works when successive claimants are in privity with one another. Privity can be met by deed of predecessor or voluntary transfer of one AP to another. Howard v. Kunto 1970: Beach house case where everyone living on wrong lot. Issues: continuous possession and tacking. Continuous possession met by summer use of beach property, ordinary to use of similar properties. Plaintiff allowed to tack prior adverse possession of previous owner of beach house in policy to “not upset long periods of occupancy of those who in good faith received an erroneous deed description.” DISABILITIES Statute of limitations extended ten years after disability removed if disability on part of true owner existed at time cause of action accrued (began). ADVERSE POSSESSION In determining end of statute of limitations in disability cases, figure two dates: date which statue of limitations would have normally ended and date disability ends + 10 years—true owner gets the longer period. ADVERSE POSSESSION OF CHATTELS Key problem in establish ECHO requirement for chattel is open and notorious. Solutions: ♦ DISCOVERY RULE A cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action—that (1) the item is missing and (2) who has missing item. Burden of proof shifted to owner to show AP was hidden, despite due diligence to uncover it. Tacking with privity allowed, but should reflect on difficulty afforded true owner in finding property. O’Keiffe v. Snyder 1980: Plaintiff had three paintings stolen in 1946, did not report stolen paintings until 1972. Four years later she demanded recovery of paintings from man who had bought the paintings in good faith. VOID TITLE: Until SOL ends, a thief has only void title, and cannot convey good title. VOIDABLE TITLE: If true owner intends to sell item to another party who presents payment in the form of a bounced check, the check bouncer has voidable title (to owner). Voidable title can be converted to bona fide title, when good faith buyer purchases item from possessor with voidable title. ♦ NEW YORK RULE Until demand by true owner is made of good faith possessor of stolen art, the good faith possession is not wrongful. Statute of limitations does not start until owner makes demand for chattel and good faith possessor refuses. EQUITABLE DOCTRINE OF LACHES: Applied when owner’s negligence (undue delay in asserting privilege) prejudices possessor. STATUTORY APPROACH TO AP OF CHATTEL Native American Graves Protection and Repatriation Act of 1990: ADVERSE POSSESSION Museums must return Native American artifacts to direct lineal descendant of original owner unless they can show such owner or owner’s tribe voluntarily ceded right to item to museum. No AP b/c AP cannot begin with voluntary transfer.