Property Class Notes 1/29/04


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 Ohio, ten years in Missouri, and only two years in Nevada.  They’re generally longer in the East and shorter in the West.  The West developed with absentee owners and Eastern capital.  Western people tended to favor the local residents, and a shorter statute of limitations had that effect.


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 Ohio statute is at O.R.C. 2305.04.  The Ohio statute creates “disabilities” related to infancy or craziness.  If you have a disability, you get an extra ten years.


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 New York, have statutes that say certain acts are deemed to constitute actual, “open and notorious” occupancy.  Fences are one example.  Fences give notice of the intent to stay there and use the land as a true owner.  When I fence some land, it’s probably because I feel like I have some claim to it.  “Open and notorious” means not covert.  You can’t acquire title by adverse possession in secret.  You must produce “markers” that a reasonably diligent true owner would discover.  You must provide notice to the true owner if they want to protect their title.


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 Montana that you can only get to in the summer months, then continuous possession would only be using it in the summer.  If you could use the land year round, then continuous possession would be year-round possession.  In Teson, we’ll encounter the issue of whether there must be possession during flooding.


“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.


Teson v. Vasquez


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 Essen, and it is assumed that Essen had good title to the property.


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.


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