Problems on Teson
Say O is ten years old when P took possession.† Would the action be barred?† No, it appears that O has a total of 14 years to bring the suit because he has until he turns 21 plus three more years.
Why does the statute contain the language ďthe person or his heirsĒ?† Say, for example, a person dies a day before their 21st birthday.† Also, sometimes the thing that renders someone incompetent can never be cured.
If you really have a 10 year old landowner, why canít that personís guardian take responsibility?† Braunstein suggests that this might be a good reason to abolish these disabilities because they go again societyís interest in certain and marketable title.† He can see how this statute could result in injustice in particular cases.
What if O was 15 years old when P took possession?† In that case, the action would be barred if O was 25 because O only had until age 24 to bring suit.† O either gets seven years or three years past the age of 21.† Make sure to calculate the time both ways.† Say O was 20 at the time the adverse possession enters.† If O gets the full seven years, O gets seven years.† If O gets the age of majority plus three years, he only gets four.† You take the calculation that is most favorable to the owner, thus O gets 7 years in this case.
What if O was mentally ill when P took possession?† It would depend on several factors: Is O still mentally ill?† If O is better, when did he get better?† How old was O when the affair began?
The law often weighs justice in the individual case against the public policy interest behind the statute.† Braunstein doesnít buy into the idea that this statute is going to do much justice.
Braunstein proposes another problem with these disabilities.† Say O would have three years to sue after the age disability is removed.† Letís say that on Oís 21st birthday, O goes crazy.† Now what happens?† On the face of the statute, it looks like O gets screwed!† We deem O incompetent until he turns 21.† Then letís say he goes crazy just before he turns 21.† Then it makes sense to say that the disability continues until it is resolved.† The answer turns out to be that you canít tack disabilities.† Braunstein thinks that this is nuts!† If disabilities are so important, then they ought to get more protection.† On the other hand, if they are as unimportant as Braunstein believes, they donít need any protection.
Say O is crazy, gets someone pregnant, and then dies.† Now we have someone who hasnít even been born yet at the time of possession, and they get crap!† The point is that you canít tack disabilities.
Braunstein canít really figure why you get the extra time from this statute.† Itís canít just be because you need it.† There are many situations where you just get screwed.† Braunstein thinks that these disabilities donít help much, and hurt the value of the statute of limitations overall.
about Problem 6?† Why do we care about
all these different possessors?† We have
a 20 year statute of limitations, and not even one possessor was there for 20
years.† Recall the Keeven and Behle
deal.† They had to tack to
What is the standard for tacking?† Tacking wonít be used to protect successive trespassers.† There must be some relationship between the successive possessors (privity of estate) that makes it reasonable to tack.† This is a vague, fluid concept.
Intestate means you die without a will.† Think of the phrase ďlast will and testamentĒ.† Since you donít have a will, somebody gets your property, and the people who get the property are called the heirs and are specified by statute.†
A has possession for 5 years and leaves the land to H (H is fine).† H keeps the land for 3 years, and then conveys it to M.† M has possession for 2 years, and then M dies.† M wills the property to P who has possession for 5 years.† P conveys the property orally to X, who has it for 3 years.† Is it a problem that it was conveyed orally?† No, because weíre not looking for valid transfers, but rather voluntary transfers.† All we want to do is preclude successive trespassers.† Itís not necessary to the rule that we have something that would qualify as a legally enforceable transfer.† X leases the property to L, then X gets it back.† Two weeks later, X joins the army and had D take over the property.† Assume being in the military is not an abandonment.† Anyhow, we get up to twenty years.† D is the last person in possession.† D abandons Blackacre to O.† But you canít abandon real property.
Now there are two distinct issues.† What kind of relationship do we need between all the people in order to tack their periods of possession?
We end up with D as the owner of the property.† Then the question is: What do we need to have a valid conveyance of real property to O?† We would need to have a written transfer!† O is not an adverse possession who is tacking, so you would need a writing that satisfies the statute of frauds!† So it would seem that D wins!† Once we say someone is an owner, then in order to transfer possession to someone else, they must satisfy the statute of frauds.
But O still has a chance!† Whatís his argument?† Maybe you could say that D never became the owner of the property.† But what if D did own the property?† Is there something D said that indicates Dís intentions?
Whatís a mechanicís lien?† Thereís a basic problem with construction contracts involving real property.† It applies to anyone who works on a construction project.† The only person that the owner promises to pay is the general contractor.† A mechanicís lien is a way for someone who does work on property without a direct contract with the owner to use the property as collateral for the payment of services.† In this case, a mechanicís lien was used by the adverse possessor to try to recover the cost of the improvements made to the land in the true ownerís absence.