Property Class Notes 1/30/04


Color of title


Color of title means that you have a written instrument that, in good faith, you think is valid and purports to convey the land at issue in the adverse possession suit.  This instrument is, by definition, invalid.  If it were valid, then you wouldn’t be an adverse possession.  Also, the true owner must have notice of the instrument.  Notice can be acquired by: actual notice (like telling the dude the stuff) or constructive (fictional) notice.  Color, in this sense, is like “colorable”, meaning “appearing to be valid”.


In the United States, there are “Recording Acts” which do a weird thing.  You ought to be able to go down to the courthouse and look at the records and see who owns what.  The Acts change a common law rule.  If you have a conveyance (a deed) from O to A, even if that deed is not recorded, A is the owner.  Then say you have a conveyance from O to B.  Under the common law, A is still the owner of the property.  At the time at O conveyed the property to B, O had nothing to convey!  Under the common law, B loses, and this is considered an intolerable situation.  If you look at the records, it looks like O is the owner of the property because the first conveyance was never recorded.


Property used to be transferred by livery of season, where one guy hands another guy a clump of dirt.  It’s a symbolic act of transferring a piece of property itself.  This is great in feudal England because most people can’t read or write.  Also, it gives other people notice that a transfer has occurred.  That might be fine in feudal England, but that’s not how we do it here.


What the Recording Acts say is that if A records the transfer, then B has constructive notice.  We’ll act as though B has notice.  We allow that fiction so that we can have a reliable recording system.  On the other hand, if A fails to record the transaction, then B wins.  This provides A an incentive to record promptly and rewards A by making A the definite owner.  There’s a stick as well as a carrot: if A fails to record promptly, B could win!


This fits in with “open and notorious”.  Transfers of property can’t be secret.


Well, what’s so great about color of title?  It has an impact on the mechanics of the adverse possession rule.  If you have color of title, you’re deemed to possess all the property described in the deed.  If you lack color of title, you’re deemed to possess only the property you actually occupy.


Say an adverse possession enters onto property 1 with a deed that describes parcels 1 and 2.  Neither of the owners is there.  A just enters onto the property owned by owner 1.  A satisfies the elements of adverse possession.  What does A own at the end of the prescriptive period?  It turns out that A only gets parcel 1.


Recall the idea that the entry has to be wrongful.  If A has a deed to parcels 1 and 2, but only wrongfully enters parcel 1, then A never wrongfully entered parcel 2 and the statute of limitations never started to run on that parcel.  We’ll do lots of examples.  We’ll see more when we do equitable servitudes and easements.


Note that you can’t take adverse possession against the government.  You can look at this as a case of sovereign immunity.


More on Teson


Teson’s claim – Why did Teson lack color of title?  He did have a deed.  But the deed wasn’t specific to all the land all the way out to the river.  He didn’t have title to the accretions.  He didn’t have title to all of the stuff he claimed, but only a portion of it.  Teson prevails as to the property described in the deed.


What about the land between the road and the pond?  He gets that too because he satisfied the elements of adverse possession.


How about the land near the river?  The burden is on the adverse possession to prove the elements.  It’s hard to see the land near the river from the road. 


Sommers’s claim – When did Sommers trade the land to the seminary?  He first got color of title and possession in 1952.  He would have to have continuous possession until 1962.  The key is if the seminary was using the property in 1960 or 1961, then Sommers would lose because he would be considered no longer in possession.


“Interrupted possession” means that the true owner came back.  “Not continuous” could mean possession was given up to somebody else.


Keevan and Behle’s claim – These folks have color of title, but their possession dates from no earlier than 1963.  Since there is a ten-year statute and the suit is brought in 1969, they can’t possibly satisfy the requirement of being there from the prescriptive period.  The issue is whether they can add their period of possession onto Hagen’s period of possession.  The court says yes: if there is a voluntary transfer from Hagen to Keevan and Behle, then tacking occurs.  On the other hand, if Hagen and Keevan and Behle were simply successive trespassers, they would have to establish their statutory period on their own.  But Hagen and Keevan and Behle are in privity of property.


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