Property
Class Notes
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
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
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