Adverse Possession

Elements of Averse Possession

(1) Actual Possesion that is (2) Adverse/Hostile (3) Open & Notorious (4) Exclusive and (5) Continuous, under Color of Title for the Required Statutory Period.

The Scenarios Discussed in Class Arranged by the Element of Adverse Possession They Implicate

(1) Actual possession: walking on the land [Nome; VV[1]]; removal of resources [picking blueberries in Nome; clearing trees in VV]; garden/shack/picnic facilities, not covering the whole land, and throwing trash/removing trash/ moving the chicken coop, in different parts of the land [Nome; VV]; same but with color of title [Romero]; a non-permanent, recreational, or mobile structure: trailer, picnic area, mobile chicken coop, shack [Nome; VV]. (2) Open and notorious: the examples from element (1) including use restricted to parts of the land; a very small intrusion undetectable by the naked eye [garage in VV intruding on triangle by only 1.5 inches]. (3) Exclusive: the possessor allowing third parties in [Nome; VV]; the possessor leasing the land to third parties [brother pays rent in VV]; third-party invitee or tenant [brother in VV]. (4) Continuous for the statutory period: possessor only present part of the year [Nome, summer/weekend houses, the brother in VV, agricultural land]; tacking [Brown; in VV: brother killing couple; brother moving in or staying after they moved out; couple transfer their "right" to brother when they leave]. (5) Adverse or hostile (three different approaches states might have): possessor possessed land he mistakenly thought was his [the garage in VV]; possessor possessed land he knew was not his [the shack in VV]. ** For a successful adverse possession claim all five elements must be found. [1] VV refers to the hypothetical discussed in class, loosely based on the NY case Van Valkenburgh v. Lutz (1952).

Adverse Possession

Adverse Possession is the doctrine under which a person in possession of land owned by someone else may acquire valid title to it.

Improving Trespasser

If the legal owner cannot benefit from the new structure · And there is no situation in which the owner would want to keep it the court will conduct a balancing test. o If the builder made a mistake and removing it would be expensive, some courts would give the real owner compensation, which would essentially be a forced sale. If the legal owner does benefit from the new structure · In certain situations, if both the parties make a mistake, the court might force the owner to sell land to trespasser or be forced to pay for the structure. Otherwise, it is unjust enrichment for the owner. Courts us the relative hardship test to evaluate these cases. · If trespasser improves the land and the trespass is o not in bad faith, o the harm is minimal, o the interference with the true owner is small, and the costs of removal are substantial, then the courts will refuse to grant injunction to true owner and force the sale or force trespasser to compensate the true owner.

Policy Justifications for Adverse Possession

Policy Justifications for Adverse Possession provide (1) that the doctrine removes risk of that ownership will be disputed on basis of distant past, (2) prevents valuable resources from being left idle, (3) protects expectations of the possessor who has come to "shape his roots to his surroundings", and (4) highlights that a formal record system (Torrens system) isn't always clear as to what the land is and who owned it.

Economic Efficiency Justifications

o It is in society's interest to promote efficient use of the land, since land is limited. o Tragedy of the commons: When something belongs to everyone, resource is destroyed. Solution = allotment of property rights. Adverse Possession is tool for allotment that tells us who the owner is, who will reap the benefits/costs of the land & gives the market information as to who owns it. o The law should award ownership to whoever is making the most productive use of the land. If adverse possessor uses land most efficiently, they should get land. § Counterargument: This creates uncertainty, which creates bad incentive (overuse land just so everyone knows its yours). Buying and selling land is better system. o Cooter & Ulen: this lowers the cost of establishing rightful ownership claims based on distant past. Uncertainty inhibits transactions and raises costs. Spares litigation costs for establishing title § Clear property lines = stronger property rights. This makes bargaining and efficient use of land easier and lowers cost of establishing rightful ownership claims based on distant past; uncertainty raises costs. Realistically, though, it's more economic to rely on record title than on litigation. o Encourages maximum utilization of land. Valuable resources aren't left idle for long periods. § Cooter & Ulen: valuable resources are not left idle for long time. § Posner: protecting "attachment" to surroundings (comes from Holmes) since if one loses attachment it diminishes marginal utility of income. Adverse possessor values property more (since will be using more). § Adverse possessor values the land more, and is thus using it more. This assumes that development is always good. Efficiency seen in the context of social norms. § Owner's interests can diminish so much that they warrant a transfer of possession (personal v. fungible property). § But - why doesn't adverse possessor just offer the titled owner money for the land? Money shows who values the property more § Counter: adverse possessor promotes efficiency by vesting ownership; avoids transaction costs that would prevent adverse possessor and titled owner from coming to an agreement. o Adverse possession introduces a degree of flexibility to deal with the otherwise very strict rigor of the formal system, allowing for some balancing of interests. Unlike with a Torrens system, our deeds and titles are not registered. Instead we have title insurance.

Rights Based Justifications

o Labor Theory of Ownership (Locke): People get ownership through labor (deserving of the land) and adverse possessor should get land due to her labor on it. § Counterargument: this only applies to gaining ownership of non-owned land. Adverse Possessor is taking land that is already owned. o Radin/Hegel Justification: You get property because we become attached to certain things, taking it away would be like taking away a piece of your personhood. Only some property is a part of personhood, while other property is simply fungible. When there is a conflict between personhood and fungible properties, personhood should win. For Adverse Possession, the property has become a part of their personhood while for the owner it's only of monetary value. So, the adverse possessor should win land. § Counterargument: Some expectations (keeping land you own) are more important than others (possessor getting land they have been using), regardless of the true owner seeing the land as "fungible." Society ends up protecting those expectations that further the relationships most beneficial to society. We want to promote social relationships, but allowing for adverse possession will make owners afraid to form relationships for fear of losing land.

Actual Possession

· An adverse possessor must use the land as a true (average, reasonable) owner would have. The owner must take advantage of the ordinary use to which the land is capable. This require more than one use. · Building on the land does not need to provide improvements to suffice. You don't have to necessarily improve the land or put it to positive use, just have to use it. · If operating under color of title, adverse possessor occupation of any part of the land generally is deemed to be actual possession of the whole lot described in the void deed. If you have color of title (defective conveyance), you don't need to prove ownership of the entire land. One would get all land even you possess some, if claim of right, you get what you possessed only.

Other Adverse Possession Considerations

· Claims of adverse possession against the government are not allowed, unless it is land not held for the public, dedicated to commercial purposes, or not open to public. · Effect on preexisting nonpossessory interests suggest that adverse possessors generally get ownership subject to preexisting liens, easements, restrictive covenants, mineral interests. · Native land claims in their "continuous" use was put to the question in Nome.

Adverse/Hostile

· Courts evaluate the permissive nature of the use or possession. The adverse possessor must show that her use was non-permissive. Both sides will look for express signs of permission or denial. · Most states have presumption of non-permission. · The majority requires no subjective intent at all. (Objective tests) · Some states require good faith, and some states require bad faith. (Subjective Tests) · To use adverse possession against a co-owner, must make explicit statement of intent to take entire property by adverse possession (ouster).

Color of Title

· If the deed is void, but the adverse possessor has been possessing the land within the terms of the deed and satisfy all of the elements of adverse possession, the adverse possessor only has to show possession of one part of the area in the deed rather than the whole area described in the deed so that constructive possession of the entire lot is given even if one only possesses a piece of the land. · If possessor has color of title (defective deed) he only needs to prove actual possession on portion of land, and he will get entire land. If no color of title, have to show actual possession of entire land in question, or will only be apportioned the land being actually used and possessed.

Claim of Right

· One only acquires ownership of the geographic area actually in possession when there is no title or deed existent.

Brown v. Gobble

· One who seeks to assert title in land by adverse possession must prove each of the following for a period of more than ten years: that he has held the land adversely and that the possession has been actual, open and notorious, exclusive, continuous, and under a claim of title or color of title. · As long as the transfer of possession of the land in question was made in privity of title or claim, one claiming adverse possession may add his years in adverse possession to those of a predecessor to establish the statutory minimum. · The Gobbles meet each of these requirements, as did the Fletchers before them: the Gobbles have maintained a fence along the two-feet-wide tract making their possession adverse; they have planted a garden and mowed the lawn, making the possession actual; the general feeling in the community is that the tract belongs to the Gobbles, making the possession open and notorious; the Gobbles testified that they have been in sole possession of the tract and no one has objected (until the Browns tried to build the road), making the possession exclusive; the Fletchers passed the tract directly on to the Gobbles under a claim of adverse possession, making the possession continuous for the time period; and finally, the Gobbles do not have actual title to the tract, but are claiming ownership under color of title. In addition, the Gobbles meet the statutorily required time period when their more than nine years of adverse possession is added to the multiple years that the Fletchers were in adverse possession. As a result, the Gobbles have met the statutory requirements of adverse possession under the doctrine of tacking. The decision of the Circuit Court of Mercer County is reversed and remanded.

Somerville v. Jacobs (1969)

· One who, through a reasonable mistake of fact and in good faith, erects a building entirely upon the land of another with reasonable belief that he owns the land, is entitled to recover the value of the improvements from the landowner, or, in the alternative, to purchase the land from the landowner for the value of the land minus the improvements. · A court of equity may grant relief to a party who improves the land of another when the party in good faith mistakenly believes that the land is his own. This relief can come in the form of the owner compensating the improver for the improvement or, alternatively, the improver buying the land from the owner. If an equity court were not to grant relief in this situation, the owner of the land built upon would be unjustly enriched. In this case, it was reasonable for the Somervilles to mistakenly believe the lot was theirs because they own a neighboring lot and because they relied on the report of a surveyor that said the lot in question is theirs. If the Somervilles are not afforded relief, the Jacobses will be unjustly enriched. Therefore, the Jacobses must compensate the Somervilles for the value of the building, or, in the alternative, sell their lot to the Somervilles for the value of the land minus that of the building.

Open & Notorious

· Possesion and use must be sufficiently visible to detect by a reasonably attentive owner so that she is put on notice. · Some courts use the naked eye test. · Other courts are stricter stating that the true owner is 'charged with seeing what reasonable inspection would disclose'.

Continuous

· Possession or use must be Continuous for the Statutory Period: · The adverse possessor must exercise control over the property in the ways customarily pursued by owners of that property. Intermittent periods of occupancy are usually not sufficient, unless seasonal or routine. · Parties may use the doctrine of Tacking to claim continuous use. o If there is conveyance between two adverse possessors of the same land (one coming after another), then the length of time stayed by the adverse possessors can be added together. o Succeeding periods of possession by different adverse possessors may be added together, if the original adverse possessor purported to transfer title to the successor. o Tacking does not apply if successor disposed the prior adverse possessor forcibly. o Many states will reduce the SOL period for good faith adverse possession or color of title o Privity is required for tacking. If privity of contract is interrupted than there can be no tacking. If one gets kicked off the land by another adverse possessor, or one leaves by will and another comes along shortly after, there is no privity and cannot tack

Nome 2000 v. Fagerstrom

· The actions required for adverse possession depend on the character of the land in question, and the requirements will be met if the land is used for the statutory period as an average owner of similar property would use it. · A claim will be valid if the land is used for the statutory period in the way an average owner of a similar piece of land would use it. The Fagerstroms' use of the northern parcel is continuous because the parcel is suitable only for seasonal use, which is how they used it. Their use is exclusive even though they allowed others on the land because such actions are consistent with a reasonably hospitable landowner. Their use is adverse because they did not have permission from Nome 2000. Finally, their use is open and notorious even though they gave no actual notice of possession because a simple visit to the parcel by Nome 2000 would have been enough for the owner to be put on notice. As a result, the Fagerstroms have acquired adverse possession as to the northern parcel. In terms of the southern parcel, the Fagerstroms' use of the trails and picking up trash are not sufficient to provide a reasonable owner notice of their possession of the parcel because any visitor or passerby would use the land in the same way. Therefore, the Fagerstroms have not acquired adverse possession as to the southern parcel. As a result, Nome 2000's directed verdict is denied as to the northern parcel and granted as to the southern parcel. The case is remanded for findings consistent with this opinion.

Exclusive

· To satisfy this element an adverse possessor must continuously keep out the real owner for the statutory period of time. · The claim can be defeated if other hostile parties (including the legal owner) occupy or use the land.

Romero v. Garcia

· Under New Mexico law, a void, unsigned deed is sufficient to create color of title for an adverse possession claim, provided the property description and extrinsic evidence are enough to enable a surveyor to ascertain the boundaries of the property. · Although a deed not signed by all interested parties may be void, it is still sufficient for color of title. See Turner v. Sanchez, 168 P.2d 96 (1946). Next, the description of the property contained in the deed will be sufficient for purposes of adverse possession so long as the description of the land would allow a surveyor to determine the boundaries based on information in the deed and any "extrinsic evidence on the ground." Richardson v. Duggar, 525 P.2d 854 (1974). Lastly, the requirement of continuous payment of taxes will be satisfied by the party's substantial compliance. In this case, the deed was void because Mrs. Garcia did not sign it. Nevertheless, the void deed is still sufficient to create color of title in Romero. Next, extrinsic landmarks on the land, including the fences and other physical markers, when combined with the description in the deed, would easily enable a surveyor to determine its boundaries. Therefore, the description in the deed is sufficient for an adverse possession claim. Finally, Romero substantially complied with the requirement to continuously pay taxes. Romero has a valid adverse possession claim, and the judgment of the trial court is affirmed.

Policy Justifications for the Improving Trespasser

· Unjust enrichment favors builder, who had a duty to determine which lot was correct. If builder made mistake, why punish owner? Hard to decide how to allocate risks - owner made mistake of not noticing, builder made mistake of building on wrong land. To determine who the best cost avoider is, we should not fall back on unjust enrichment. · Who should bear the risk of knowing where the boundaries are? o Majority: the real owner should be an insurance system for the trespasser. We're undermining the system of adverse possession: the balance between real owner and trespasser. o Minority: builder should know where the lines are.

Community Feed Store, Inc. v. Northeastern Culvert Corp. (1989)

· Where one claiming a prescriptive easement proves the general outlines of the area of his continuous, adverse, and notorious use with reasonable certainty, that is sufficient to establish the claim. · In a claim for a prescriptive easement, the extent of the claimant's use does not have to be proven with absolute certainty. It is sufficient that the claimant prove the general outlines of the area of his use with reasonable certainty. In this case, Feed Store introduced abundant evidence, including surveys, photographs, and diagrams to establish the general outlines of its use of the portion of the lot owned by Northeastern. The court finds that this evidence establishes the general outlines of the easement with reasonable certainty. Because of this and because the use of the lot for the purposes of vehicles turning around was continuous, adverse, and notorious for much more than the required 15-year period, Feed Store is granted a prescriptive easement. The trial court is reversed.

Adverse possesion claims arise:

· as a defense to trespass or ejectment, · in a quiet title claim when a party is asking a court to define ownership, and · when an adverse possessor is trying to prevent the actual owner from repossessing the land.