TERMS CH 2

Tension Between Two Policy Concerns

1. Diligent landowners monitor the borders of their lots carefully. 2. Friendly neighbors do not fuss about small intrusions or resurvey frequently to protect their borders

tests for actual use

1. E.g., "use the way an average owner would use" 2. E.g., "use ordinary or appropriate for the type of property claimed" 3. PA: "depends on the facts of each case and to a large extent on the character of the premises"

Actual Use. Physical possession or entry required

1. Enough to create a cause of action for trespass 2. Generally must be substantial & leave physical evidence 3. FL: need actual entry: "overt physical acts of possession"

state of mind

1. Some jurisdictions have no state of mind requirement, so that an honest mistake can yield adverse possession. 2. Some jurisdictions with no state of mind requirement in other contexts, require "bad state of mind" (intent to adversely possess) in border disputes. This is called the Maine Doctrine.

Payment of Taxes by the Adverse Possessor

1. Usually required by short statutes, esp. if no color of title (see Fl. & Calif.) 2. Not part of long statutes 3. Generally irrelevant if owner also paying taxes

Burdens of Proof/Negative Presumptions

1.Adverse possessors generally disfavored by courts 2. Some states: Need "clear and convincing" evidence to win a. More than "preponderance of evidence" (usual civil case) b. Less than "beyond a reasonable doubt" (criminal case) 3.Some states: Any doubts resolved in favor of legal owner

color of title

A Few States (e.g., New Mexico): Required for All Adverse Possession Claims

notice

Acts such that someone should be aware

color of title

Document purporting to give title but giving none 1. Usually defective deed or will 2. Generally holder has to have good faith belief in validity of document

95.16. (2) Real property actions; adverse possession under color of title

For the purpose of this section, property is deemed possessed in any of the following cases: (a) When it has been usually cultivated or improved. (b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed. (c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant. (d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.

95.18. Real property actions; adverse possession without color of title (2)

For the purpose of this section, property shall be deemed to be possessed in the following cases only: (a) When it has been protected by substantial enclosure. (b) When it has been usually cultivated or improved.

ejectment

If a person moves onto land you own without your permission and refuses to leave, you would bring an action for:

hostile

If possessor has consent at first, must take steps to repudiate permission in order to make adverse possession claim. (E.g., "Dear Floyd, I know you gave me permission to use your ski cabin but I have decided that I like it a lot and it is too good for you. Thus, I am taking it for myself. Love, Emily.).

95.13. Real property actions, possession by legal owner presumed

In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time prescribed by law. The occupation of the property by any other person shall be in subordination to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.

Exclusivity

In most states, use by the owner during the period the possessor is trying to meet the statutory requirements means the possessor has to start counting the statute of limitations period again.

exclusivity

In some states, use of the land by the public in way that suggests a general public right (e.g., as a public beach) defeats individual adverse possession claims

hostile

Lack of Permission from the Owner

color of title

Most states NOT a required element of adverse possession 2.Can reduce burden of proof for claiming adverse possession in a variety of ways: a. Shorter statute of limitations (some states) b. Less burdensome requirements (some states) (i) Fl. Statute (and others): easier to show "actual use" (ii) Some states: presumption of "hostile" c. Allows "constructive" adverse possession of whole parcel described in document from use of a part (all states) (i) Without, can only adversely possess what you actually use (ii) If, e.g., you have an invalid deed giving you all of a 20-acre lot, but you only really use 10 acres, the court can find constructive adverse possession of the rest.

continuous

Must meet all elements without a significant interruption for the statutory limitations period

95.12. Real property actions FL

No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person's ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.

Open and Notorious

Requires activity sufficient to make owner aware of adverse possessor's use of contested lot. 1. Note that this doesn't mean owner must actually be aware 2. Common legal distinction: "Notice" v. "Knowledge" (a) "Notice": Acts such that someone should be aware (b) "Knowledge": Person is in fact aware

tests for actual use

Some states require cultivation, enclosure, residence or improvements (a) CA: Fence or other enclosure must be "substantial and ... kept in good repair." (b) "Improvements" here means constructing something or making large structural repairs, not merely making the lot look better.

knowledge

Somebody actually is aware

95.18. Real property actions; adverse possession without color of title (1)

When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

95.16. (1) Real property actions; adverse possession under color of title

When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.

California compromises

Where there is confusion as to the boundary of land, and the occupancy under mistake is without intention to claim another's land, the intention being to claim only to the true line wherever it may be, the holding is not adverse. (2) But where the possessor intends to claim the area occupied as his own, the holding is adverse despite the fact that the claim is based on mistake." Sorenson v. Costa (Cal. 1948).

statute of limitations

actions that limits the amount of time you have to bring the lawsuit to clear your land

tacking

adding activities of successive possessors or successive owners to make up whole statutory period

FL PA open and notorious test

conduct sufficient to put a "reasonable person" (PA) or a person "of ordinary prudence" (FL) on notice that his or her land is being held by the claimant as his own

Exclusive

does not mean that only one person can adversely possess. Two or more people can adversely possess together, and receive some form of joint ownership at the end

Adverse possession won't run

government

privity

legal connection: (a) Intestate succession (b) Grant through a will (c) Gift or sale

Adverse possession won't run

non-possessory interests (e.g., landlords; holders of future interests)

Open and notorious common test

"Is use by the possessor visible to a person on the surface of the possessed land"

Significant interruption

(a) If lapse by possessor, depends on normal use of property (b) PA: temporary break OK if "not of unreasonable duration" (c) If interruption by owner, in FL length irrelevant

Interruption

(a) Lapse by possessor OR (b) Act by owner that amounts to resumption of possession (see "exclusive")

claim of right or state of mind

(a) Typical definition: possessor must indicate he holds the property against the whole world including the true owner. (b) May just mean use is of character owner would make. (c) Some states use to mean intent to adversely possess