property: jan 28 2010 class notes

recap.

bailments.

winkfield.

relationship between three parties: true owner -- middle person -- third party

who do we want to hold responsible for double liability?

economic argument

adverse possession (possession that ripens into ownership)

in reality of modern times, these are cases where people accidentally go over the allotment of their property lines.

van valkenburg v. lutz

johnson v. macintosh (review for the way that we determine

why allow this? resources can be put to productive use that will make us all better off; doctrine of latches;

what does our jurisprudence do to ameliorate the potential unfairness to this (beyond our principles of latches)? the four factor test we imply, the elements of reliance

holmes: "when you possess a thing long enough, you start to feel like it's yours even if it isn't"

endowment effect (upenn reading on endowment effect)

what does it mean to physically possess land? color of title issues

why a title? title gives some limits to the adverse possessor's claim.

color of title can limit what might otherwise be vague claims.

beyond this, we only have evidence from the adverse possessor's actual behavior.

problem

O owns and has been in possession of a 100-acre farm since 1975. in 1990, A entered the back 40 acres under color of an invalid deed from Z (who had no claim to the land) for the entire 100 acres. since her entry, A has occupied and improved the back 40 acres in the usual manner for the period required by the statute of limitations. A brings suit to evict O from the farm, claiming title by constructive adverse possession. what result?

- A does not have exclusive possession because actual trumps constructive possession

problem

two contiguous lots, 1 and 2 are owned by X and Y, who are not in possession. the lots are conveyed by an invalid deed from Z to A who enters lot 1 and occupies it in the usual manner for the period required by the SOL. subsequently, A sues X and Y to quiet title to lots 1 and 2. what result?

- this is a problem of ejectment. A wins against X but not against Y because A has not exercised possession over the plot owned by Y and there was nothing

mannillo v. gorski

element 1: hostile

what's hostile in adverse possession?

three assertions to ownership: (1) i thought it was mine (2) i meant to take it by force (3)i didn't mean to but encroached

maine doctrine (assertion 2, you must intend to take) see Preble v. Maine

criticism - this awards trespassers as opposed to people with good faith, and we don't want to encourage that

connecticut doctrine (any of the three assertions work) see French v. Pierce

adoption - conn is more objective, and will not change stare decisis the court's treatment of reliance

element 2: open & notorious

what's open and notorious? "clear and unequivocal and to such an extent as to be immediately visible, the owner may be presumed to have knowledge of the adverse occupancy..."

here, subjective state of mind is relevant: did the property owner know that the defendant was encroaching? the only way to know is review of the facts, so court remands.

result: court essentially forces the parties back to the bargaining table.

walling v. przybylo

this case comes on the heels of a vetoed NYS bill proposal to outlaw adverse possession

the court generally says that "conduct will prevail over knowledge" (connecticut doctrine)

Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. The adverse possessor must act under claim of right...By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors...The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new...The issue is "actual occupation," not subjective knowledge....

this case overrules lutz *and* created resulting NY Laws Ch. 269 (and n.b. prof parella helped to draft this statute)

so now, shrubs and fences do not "take possession", and neither does mowing the land...

in NYS, an adverse possessor in order to establish he had the claim of right element of the statute must show that he had a good faith belief that hte land he was possessing is legally his.

Prof Parella helped draft

interesting insights directly from the wallings and przybylo also on the issues of adverse possession