Adverse Possession - Property

Rules

1. Adverse possession. A “disseisor” (D) may claim title to an owner’s (O’s) land after (1) an entry that is (2) open and notorious, (3) continuous for the statutory period; (4) adverse or hostile (“under claim of right”); and (5) exclusive.

   1. Entry. Must be “actual” possession; in some jurisdictions this requires an enclosure or cultivation and improvement. Van Valkenburgh.

      1. N.Y. Requires clear and positive proof of use of whole premises claimed. Van Valkenburgh.

      2. Majority. D may claim what he occupies; see, infra, regarding constructive AP.

   2. Open and notorious. D must adversely possess property in a manner...

      1. Objective. ...that a reasonably diligent O would recognize.

      2. Subjective....that O recognizes; “actual knowledge” may be presumed. But see Mannillo, infra.

   3. Continuousness. D must use property in manner “as ordinarily marks conduct of owners” for the entire statutory period. Howard.

      1. Laches exception. Some courts may exercise equity when statutory period barely not met.

   4. Adverse or hostile. There are four possible standards for this requirement:

      1. Objective (majority). Intent of D does not matter.

      2. Good-faith. D believed he owned the property, Van Valkenburgh.

      3. Under “claim of title.” D had an erroneous deed listing property as his own, Howard.

      4. Aggressive. D intended to make O’s property his; sometimes D must compensate O to make up for the moral wrong of trespassing. Preble v. Maine Cent. R.R. Co. (Me. 1893).

   5. Exclusive. O must not use the property as his own or rent the property to D during the statutory period.

Analysis

1. Justifications for adverse possession. Adverse possession is similar to finders’ law, in that D may possess property without O’s consent. The law tends to balance the merit of the possessor against the demerit of the original owner (O).

   1. J.S. Mill, Principles of Political Economy (1848) (Supp. I, 193).

      1. Efficiency. “Even when the acquisition was wrongful, the dispossession, after a generation has elapsed, of the probably bona fide possessors, by the revival of a claim which had been long dormant, would generally be a greater injustice, and...mischief, than leaving the original wrong without atonement.”

   2. Powell on Real Property §91.01 (2009) (116).

      1. Security. “It rests upon social judgments that there should be a restricted duration for the assertion of ‘aging claims,’ and that passage of a reasonable time period should assure security to...an owner.”

   3. Henry W. Ballantine, Title by Adverse Possession (1918) (117).

      1. Predictability. Adverse possession is not “to reward the diligent trespasser...[or] penalize the negligent...;the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.”

   4. Oliver Wendell Holmes, The Path of the Law (1897) (118).

      1. Psychology. “Sometimes the loss of evidence is referred to....Sometimes the desirability of peace.... But the connection ...is in the nature of man’s mind. 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....”

2. Entry requirement. This creates the cause of action (trespass or ejectment) that triggers the statute of limitations. Without entry by D, O may not act to dislodge him. D only begins to “earn” rights by entry.

3. Open and notorious requirement. The law cannot blame an owner for “sleeping” on rights if he did not know D was trespassing. Courts have shifted from presuming knowledge in urban areas with ill-defined boundaries to requiring “actual knowledge” but with possibility of keeping encroachment in exchange for compensation if removal is impractical. See Mannillo, infra.

4. Continuousness requirement. This is not literal; D may come and go given the nature of the property in question. Possession required is contextual and analogous to acquisition by capture. Howard.

5. Adverseness requirement. This is sometimes interpreted to mean D seeks O’s property or D thinks property is his own. “Color of title” requires an erroneous deed.

   1. Objective (majority). Intent of A does not matter because O has cause of action regardless of A’s mental state, and law focuses on demerit of O. Totman v. Malloy (Mass. 2000).

   2. Good-faith. This is compatible with “hostility,” e.g. D believes land is his but deed says it actually belongs to O. Halpern v. Lacy Investment Corp. (Ga. 1989). New York briefly overruled this standard in Walling v. Przybylo (N.Y. 2006), but legislature passed good-faith statute in 2008 on grounds that it is unfair to reward A who takes property in bad faith.

   3. Aggressive. This is fair if law focuses exclusively on O’s demerit, especially since A may have to compensate O. Compensation has been rejected for prescriptive easements. Warsaw v. Chi. Metallic Ceilings, Inc. (Cal. 1984).

6. Exclusivity requirement. Similar to acquisition law, although multiple Ds can adversely possess property together (e.g. a family of trespassers). But see Tacking.

Major Cases

1. Van Valkenburgh v. Lutz (N.Y. 1952) (122)

   1. (Dye, J.) Δ spent 15+ years gardening on lot and selling veggies. After neighbors bought lot, Δ brought action admitting that Π owned lot but Δ had right to an easement over right of way near border. Π later sued. N.Y. “entry” rule required possession of “whole” of premises, and N.Y. “adverse” rule was “good faith,” so Δ loses because he did not believe he actually owned lot.

   2. (Fuld, J., dissenting) Δ did use nearly all of property. Δ testified that he believed property was Π’s after statute of limitations had ended, so Δ already had title regardless of testimony.

2. Ewing v. Burnet (U.S. 1837) (Supp. I, 195)

   1. (Baldwin, J.) Π had title to unoccupied gravel pit but did not enter, demand possession, or exercise ownership after Δ was sold land by same seller years later. Δ entered but did not occupy or enclose pit; administered 21 years of gravel removal before he was sued. Δ made claim under color of right, and possessed as best as possible, so AP.

Rules

1. Boundary disputes & encroachments. Courts are less willing to presume knowledge (re: “open and notorious”) for minor encroachments. The old “innocent improver” rule authorized the land’s owner to keep the improvement, but new rule requires encroacher to remove encroachment or, if impracticable, compensate the original owner in exchange for a forced conveyance. Mannillo.

   1. Amkco test. Similar two-part test strongly favors forced conveyances for encroachments. Removal if (A) O can show irreparable harm if removal is denied; and (B) balance of hardships between O/D favors O. Otherwise, D gets title, easement, and/or damages. Amkco Ltd. v. Wellborn (N.M. 2001).

   2. Intentional encroachments. These are always removed.

   3. “Agreed boundaries.” If there is uncertainty regarding boundaries, oral agreements are enforceable if settled for a long period.

   4. “Acquiescence.” If Neighbor A agrees to boundary, long-enough “acquiescence” bars a suit; time required is much shorter than SOL.

   5. “Estoppel.” If A says boundary is at Point X, and B changes position in reliance on A’s representation, A may not deny the validity of statement.

2. Constructive adverse possession. If D claims tract under color of title (i.e. an erroneous deed) but only enters/possesses a fraction of it, gets all of it (fig. 1).

   1. Entry problem. If D’s erroneous deed includes property whose title belongs to multiple owners (X and Y), D may only constructively possess title of owners who could have brought ejectment claim (e.g. X in fig. 2).

3. Tacking.

   1. Main rule. If D₁ is adversely possessing property and wishes to convey possession to D₂ without breaking “continuousness” requirement, D₁ may do so (“tack”) under color of title (i.e. with an erroneous deed) so that D₁/D₂ are in “privity.” This only works when erroneous deed includes (or is greater than) land D₁ is actually possessing (fig. 3). Howard.

      1. See also Buchanan v. Cassell (Wash. 1959), where D₁ AP’d X and Y intending to deed both to D₂, but deed said “Y.” D₂ got both (fig. 4).

   2. Limited expansion. If D₁ is adversely possessing land without a deed because his deed covers the neighboring plot, may still tack (fig. 5). Howard.

   3. Interruption. If D₁ is adversely possessing O’s property but gets kicked off by D₂ before SOL expires, no adverse possession. (Yes in U.K.)

4. The government. No adverse possession against the government; nullum tempus occurrit regi (“no time runs out against the king”).

   1. Exception. The government holds land in a proprietary (non-public) capacity. Eller Media Co. v. Bruckner Outdoor Signs, Inc. (N.Y. 2002).

5. Personal property. Similar to normal AP, but with shorter statute of limitations that begins at a different time, and other exceptions:

   1. Statute of limitations. By default begins at time of theft, but:

      1. Majority (“discovery rule”). Begins when injured O discovers or by exercise of reasonable diligence should have discovered facts which form basis of recovery action. O’Keeffe.

      2. New York. Begins when O demands work from good faith buyer and buyer refuses; until then, possession by buyer not wrongful. Solomon R. Guggenheim Found. v. Lubell (N.Y. 1991).

      3. Minority. Begins when possessor meets all AP requirements.

   2. Thieves.

      1. U.S. A...