#11548 - Adverse Possession - Property

ADVERSE POSSESSION

1. Elements

   1. Actual and exclusive possession for the statutory period

      1. Courts say actual can depend on customary uses for that land

         1. McCarty v Sheets—using the garage was enough to give AP over the portion covered by the garage, but raking leaves was insufficient use to give them AP ownership of the land next to the garage; court did however grant prescriptive easement for the garage eaves.

         2. Ewing—leasing gravel rights was enough for actual and exclusive

      2. Ordinarily, actual possession only over the portions of the tract that you occupy. But if you have possession under color of title, then you can get AP of the entire tract, even the portions you aren’t occupying, if you meet all the other elements.

   2. Open and Notorious

      1. Can be of such character under the circumstances as would indicate to a reasonable person that someone else might be claiming the property.

      2. The point of open and notorious is to give notice

      3. General rule is that it just needs to be open and notorious that the AP is actually using it, doesn’t need to be O&N that it’s not his land.

Some exceptions:

4. In Manillo v Gorski, court says that no presumption of knowledge arises from a minor (15 in.) encroachment along a common boundary. Manilo knows that Gorski has the stoop, he just doesn’t know that it’s on his land. In such a case, only where the true owner has actual knowledge thereof may it be deemed O & N.

5. Marengo Cave---court said that the fact that Ross knew that the cave existed did not show that he knew it existed under his land, so it wasn’t open, notorious or exclusive. Court gives Ross some rights to the portion of the cave under his land. Cave co. had operated the cave for 25 years before Ross bought his land and 21 years after. FU thinks the court got this wrong, but wanted to stick it to the cave company for acting in bad faith and denying Ross’ earlier request to get a survey on the land.

3. Continuous and uninterrupted during the whole period

   1. Kunto—continuous can be just summer months if its common in that community to just use the homes during the summer. To meet continuous, AP must use the property as would the true owner under the circumstances

   2. 13^th St. squatters. Court said the squatters have no privity—they were no legal entity.

4. Hostile or adverse and under a claim of right (claim of right just means hostile, has nothing to do with good or bad faith)

   1. Basically means without the Owner’s permission (e.g., a tenant is operating consistent with the legal rights of the landlord, so he is not taking hostile possession, unless maybe if he stays w/o paying rent and exhibits a clear intention to take ownership w/o rent)

   2. Good faith (or bad faith) sometimes seen as part of hostility; sometimes seen as (+1) in 4+1 elements. Most states don’t require good or bad faith, just require the 4 elements. Some require good faith. Some require bad faith.

      1. Maine rule: AP has to take the land with the inention to keep it even if he knows, or learns, that it’s not his

      2. American rule: In some jdx, court will award to the good faith, or innocent, trespasser, but not to the bad faith one

      3. British rule (also CT): intention is irrelevant

   3. Cases

      1. Ennis v Stanley—P used land up to a fence boundary, thinking it was his, but turns out it was D’s. Court says that mistaken belief does not amount to hostile possession.

      2. Wallis’ Cayton Bay v ShellMex—garage company bought land and was waiting to see if a road would be built near it. While they were waiting, famer used the land for years. Garage company then tried to sell land to him, farmer sued claiming he already owned it by AP. Court says farmer’s use as never adverse to the garage company’s “use,” which was just having it and waiting in case the road was built.

      3. Manilo overturns Maine rule in NJ

   4. Lexis def of claim of right: An entry upon land with the intent to claim the land and to hold it; the intention of a disseisor to appropriate and use land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.

2. Policy

   1. In Howard v Kunto and Manillo (on their open/notorious ruling), we see the court wanting to prevent wasteful and excessive constant surveys of land

   2. In Manillo, where’s the harm? Manillo is using this land for his stoop for 23 years. Mannillo had the land that he thought he was entitled to. All Mannillo was losing was some abstract property right. But what is a property right good for if not to protect and enforce your expectations to be able to enjoy land that you think is yours?

   3. Court’s rationale in Mannillo, where the encroachment is so small, is basically to avoid the need for wasteful surveys every time there’s a tiny encroachment.

3. Tapscott v Lessee of Cobbs

   1. Bad lawyering—there’s a rebuttable presumption that Cobbs, as Lewis’ heir, takes possession upon Lewis’ death. But, b/c he’s a freed slave and worried about jury, Tapscott didn’t testify to rebut that presumption

4. Ewing v Burnet

   1. Even though Ewing got faulty title from Symmes after Symmes had already deeded to someone earlier in Ewing’s chain, he met all the requirements for AP, so court gives it to him. Running a gravel operation and granting some people right to dig shows actual and exclusive possession.

   2. Court does not say whether good faith is necessary (i.e., what they’d have done if Ewing could have proven that Burnet knew of the earlier deed) but we can infer that they probably wouldn’t have given it to him if he knew of the earlier deed (bad faith)

5. Good Faith

   1. Maine Rule: Adverse possessor has to be in bad faith. Must know that it belongs to someone else and that it’s not his.

   2. General American rule: Has to be in good faith.

   3. British Rule

6. Tacking

   1. In order to tack posesion of prior possessor, must have privity of interest

      1. Howard v. Kunto—court dismisses plaintiff’s suit on appeal. Found continuity for Kunto in summer months. Kunto had only owned the land for about a year. Also, said there’s a substantial difference b/w Kunto’s case and that of a squatter. Where one, along with several of his neighbors, occupy land that’s 50ft off, as a result of an inaccurate survey conducted more than 30 years ago, and where possession is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity to permit tacking and AP.

   2. in order to tack on the years of the previous AP, one needs privity of interest. This can be accomplished through sale, gift, or inheritance...