First Right of Refusal Real Estate Colorado - PowerPoint by bsq17820


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									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
 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
 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
 Reward possessor for productivity
Have you read the
 Redbook or the
Greenbook for the
   first time.
If not, do it
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
Jarvis v. Gillespie-More Facts
 Between 1947 and 1986 plaintiff wrongfully used
  defendant’s land to
   – graze cattle, park vehicles, logging operations, store
   – plaintiff maintained fence, tapped trees, planted trees,
     cut trees
   – posted “no trespassing signs”
 In 1986 Waterville (the record title owner) conveys to
 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
 “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
 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
 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
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



                A=Adverse Possessor
                O=True Owner
 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
  – 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
  – Gifts, bequests, mortgages
     • Oral/Written/Permissive
  – Ousters
 Problems (a)-(f) on page 186
 What is the concept of tolling
 Typically, what sorts of disabilities qualify for
   –   Minority (under the age of 18)
   –   Mental incompetency
   –   Imprisonment
   –   Soldiers and Sailors
Tolling (The Ohio Statute)
 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,       Problems, Page 188
   but if a person entitled to            Problems Page
   bring the action is, at the time       175
   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
Rightful Entry; Wrongful Staying
 Typically, AP enters wrongfully and stays
 Co-tenants
 Tenant/Landlord
 Life tenant/remainderman
 Heirs and devisees
Hostility and under Claim of
 Objective vs. Subjective hostility

                  Watch what I do
                   Not what I say
Mannillo v. Gorski-The Facts

           O        A
Mannillo v. Gorski-The
 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
Mannillo v. Gorski-Condoning
 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
 What would plaintiff have needed to acquire a title
  by adverse possession?
   – Color of title
Innocent Improver Doctrine

               O             A

     What are the options?
Color of Title



     AP enters to the right of line A-B under Deed
              describing all of Blackacre
Color of Title-Adjoining Lots
      O owns lots 1-4

    1           2           3           4

   AP enters Lot 1 under deed describing Lots 1 and 2
   AP enters Lot 1 under deed describing Lots 1 and 3

     Suppose O owned Lot 1 and O-1 owned Lot 2
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

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