Property
Class Notes
Most
of the stuff we’ve done so far has involved involuntary
transfers, including eminent domain.
Here’s another kind of involuntary transfer.
Adverse possession
This
is based on the statute of limitations for the action of ejectment. If someone occupies your land, you only have
a certain amount of time to take action to take it back. Once the adverse possessor has been in
possession for a certain amount of time, nobody can do anything to dispossess
you. The statutory period varies. It’s 21 years in
When
the statute of limitations bars a tort claim, we’re not saying that the bad
person didn’t do it. We just say that
you can’t sue them anymore. Notice that adverse
possession bars anyone from coming
forward with a claim. This statute of
limitations is liberative; it ends
the rights of all people to be able
to make a claim. Tort statutes of
limitations are prescriptive, in that
they end the right of a particular person to sue.
The
law of adverse possession is a composite of common law and statutes. But notice that the elements of adverse
possession that we’ll discuss below are usually not contained in the actual statutes. Adverse possession is more or less uniform
from state to state, but there are some important differences.
The
Why
do we have this doctrine? It appears to
be like acquiring title by theft? Why do
we let people do this? There are several
theories.
Holmes
said that basically when you’ve been associated with a certain property long
enough, you just start thinking of it as yours.
There is some kind of psychological attachment, but also after some
period of time, people develop the expectation that they’ll be able to stay
where they are.
Here
are three more popular theories: We want to punish lax landowners (the “sleeping
theory”). We want to reward the diligent
occupier (“earning theory”). The court
may lean towards different conclusions depending whether it focuses on the
laziness of the true owner or the laziness of the adverse possessor.
Finally,
we want to provide security of title (certainty). After a while, you’ll want to clear up
uncertainty in the records. Eventually,
you just need to let bygones be bygones and let sleeping does lie. You don’t want disputes to proceed
indefinitely.
The elements of adverse
possession
Actual possession – You must actually enter
onto the property. It has to be
exclusive insofar as your occupation isn’t shared with the true owner. Teson adds the requirement, which you don’t
see in some other cases, that occupation cannot be vicarious.
Entry
is required because the cause of action that limitates out is ejectment or
trespass. Until you have entry, your statute
of limitations doesn’t begin to run. We’ll
talk about claim of right (good faith versus bad faith of adverse possessor)
and color of title, but entry must always be wrongful in order for the statute
of limitations to start running. You can’t
just look at someone’s land in order
to take adverse possession. Looking at
someone’s property isn’t unlawful and it’s not an entry, so it doesn’t matter
how long you do it. In some states, you
may be required to think you have the
right to be there, but it’s always
essential that you be wrong.
Braunstein
says that the good faith requirement is something we could better do without
because it’s confusing and it encourages people to lie. Braunstein would use an objective standard
rather than a subjective standard. But
in some states, claim of right is important.
In
some states, in order to become an adverse possessor, you must pay taxes on the
land. One problem with that is that two
people may pay taxes on the same property.
Sometimes the tax bill isn’t specific enough to know what’s you’re
paying taxes on.
Open and notorious
possession –
These two words mean pretty much the same thing. These mean that you act the same way the true
owner would act with respect to the land.
Just what conduct this requires depends on the typical uses of the
land. If the land is good for farming,
then a true owner would farm on that land.
If the land is good for building a house, then a true owner would build
a house there. Some states, like
Hostile possession – Possession must be adverse or hostile everywhere (not permissive). In some states, you also need a claim of
right. An example of this would be that
a tenant can never acquire title to a property they’re renting. If you’re not living in your apartment wrongfully, then your possession isn’t hostile and you won’t get adverse
possession.
What’s
a “claim of right”? It could be, more or
less, “hostility”. But in some states,
there can be a subjective component. You
may need a good faith belief that you’re entitled to your possession. Often this means you have a deed that purports to give you title to the land.
Continuous possession – “Continuous” and “uninterrupted”
don’t mean the same thing. “Continuous”
relates to what the adverse possession does.
It doesn’t mean 24/7. It gets
back to how a true owner would use the land.
If it’s land in the mountains of
“Uninterrupted”
relates to the acts of the owner. What’s
the best way for an owner to stop the statute of limitations from running? Just file a suit within the statutory
period! Even if the judgment comes much
later, you will have successfully interrupted the adverse possession and the judgment
will be effective back to the date when the suit was filed (if you win).
How
else can you interrupt possession? You
could simply stop the adverse
possession. There are a couple problems,
though. If you use force, you might fail
because they’re stronger. Also, you may
just give the adverse possessor the opportunity to show how hostile he is.
The
adverse possessor’s possession must be continuous,
and the true owner mustn’t interrupt
possession during the statutory period.
Possession must last for the
prescriptive period – It’s more complicated than it seems!
There are two problems: (1) Tacking – one adverse possessor can transfer
their rights to someone, and the transferee is then herself an adverse
possessor, but the two of them can add their time together. (2) Disabilities – If the owner is under some
disability like insanity, that may last for quite a long time, and the regular statutory
period may not be enough to get you adverse possession.
The
case really involves three different claims of adverse possession: Teson,
Sommers, and the two dudes Keeven and Behle.
The dudes raise a lot of the same issues.
In
all of these cases, Vasquez claims title by virtue of a quitclaim deed from the
1950’s. Vasquez got the property from
There
are three generally recognized kinds of deeds:
1. Quitclaim deed – a deed by which one person transfers to another whatever interest
they happen to own in the property. But
they don’t warranty or guarantee that they own anything. One of the most
common uses is when there is some question in regard to a will, where it
appears all the property was left to one heir, but there is ambiguity in the
will. The heir who was left own may be
willing to give a deed to clean up the title, but they’re unwilling to risk any
liability. These deeds are often used to
clean up title defects. But it’s also a
perfectly good way to convey title from one person to another.
2. General warranty deed – This is sort of the opposite of a quitclaim
deed. This deed warrants that nobody has
a better title and that quiet title is assured.
3. Limited warranty deed – This warrants that there are no defects in the title,
but it’s limited to the acts of the person who is selling the land. It’s the new owners problem if there are any
acts predating the warrantor.
All
of these deeds are effective to convey title.
The only difference is whether you can sue for breach of warranty if the
title is screwed up.