property: feb 2 2010 class notes

adverse possession

recap.

5 elements are required:

i) actual and physical possession

ii) adverse or hostile

iii) exclusive

iv) continuous for the entire period

v) open& notorious

review mannillo v. gorski and walling v. pryzblyo: claim of title, good faith standard in adverse possession is created by the NYS statute

ME doctrine "bad faith standard": where you must establish that you took title under trespass

CT doctrine "objective standard": court doesn't care what the subjective reasons were for the taking, and it doesn't really impact the stare decisis or the impact of the

are the actions of the owner inconsistent with the recognition of superior title? has the owner essentially given over his expectation of exclusive and superior title?

permissive possession: further narrowing the scope of what we consider open&notorious (because now, mowing a lawn is open but permissive)

what's open&notorious?? how we want for reasonable owners to be on notice that they have a claim!

in mannillo v. gorski, the encroachment was on the land, but court did not charge the act as open&notorious because it would be unreasonable to require landowners to continually survey their property.

remedies in adverse possession: court will apply some equitable powers

tacking aggregation of possession by different persons acquired by voluntary transfer

whoa - tricky analysis!!

howard v. kunto

mr. howard is a jerk -- the land under each property is incorrectly titled. howard trades his title with the moyers (the people who own the land the kuntos are on) and then sues the kuntos.

kuntos assert that they have the land by adverse possession.

the howards win at trial court because:

continuous possession is not established -- a summer home and no tacking

however, acting like an owner with respect to the land will vary depending on what kind of land is at issue. for a summer home, the possessor should be there over the summer.

why?

problem

A enters on O's property. before the 10yr SOL is over, B ejects A. at the end of the 10yr period, who owns the property? O because A never acquired the land in a way such as to pass it on to B.

intent -- must be voluntary transfer of interest from party to party to create reliance on part of subsequent possessor's! this voluntary transfer is not present in threat or in successive squatting!

**privity of voluntary relationships**

should the kuntos be able to tack their interest? YES -- it's not their fault that their neighbors just realized that the land is incorrectly distributed

conflicting reasons for adverse possession: doctrine of laches (i.e. "sleeping on your rights") v. recognizing color of title

problem

O creates a will. A enters adversely on O's property and remains past SOL. O dies and his will leaves the property to B and remainder to C over time (meaning, when B dies C gets the property). who owns the property?

- when does SOL begin to run/ who is the first to have a COA? O had opportunity, but didn't exercise

therefore, O tacks privity to COA to B and C on burden of adverse possession of A! both C and B get their privity of interest from O, and when O created his interest, A was not in adverse possession of the land!

note -- government land: if our agents aren't able to monitor all our publicly possessed land, we don't want our policies to allow private parties to come and usurp our public rights to land

o'keefe v. snyder seaweed, cliffs and fragments went missing...

side note - another bouncing ball art blog

how is the open&notorious issue satisfied here, in regards to chattel?

let's review bailment (the winkfield) vs. theft

bailor --> bailee --> purchaser owner --> thief --> purchaser

the statutes of replevin will hold so long as the true owner in the exercise of reasonable diligence is not able to ascertain both that someone else is in possession and the person's identity such that they may file a lawsuit

was georgia diligent in finding the adversely acquired paintings?

what's diligence? reasonableness -- did she act in a way that would have been expected?

voidable title (voidable title slides under sales at IU, helps this analysis because steiglitz probably sold the paintings)

the relationships above relate to the voidable title: the relationship between o'keefe and steigitz was a bailor/bailee relationship where she could have protected herself by monitoring her contractual relationship in a way that can't be done when the dilemma is created by a thief.

how does adverse possession apply to the bailor/bailee and owner/thief scenarios?

a thief's possession can ripen to good title when the SOL of adverse possession is run.

but when is it run? DISCOVERY RULE

the discovery rule shifts the emphasis from the conduct of the possessor to the conduct of the owner. The focus of the inquiry will no longer be whether the possessor has met the test of adverse possession but whether the owner has acted with due diligence in pursuing his or her property

interesting excerpt from art services blog on ownership of art...

native american graves and repatriation act