Adverse Possession

Read the Redbook (Bergin

and Haskill page 1-121) or
the Greenbook (Moynihan
in its entirety)
Basic Requirements
 At the core of adverse possession is a statute of
limitation
 Statutes of Limitation bar suits after some
period of time after the cause of action accrues
 Why a Statute of Limitations
– Stale claims
– Memory of witnesses
– Plaintiff lacks seriousness
– Judicial administration
Basic Requirements
 In context of actions to recover possession of real
property
 Cause of action accrues at the time the wrongdoer
enters and takes possession of the property
 Cause of action for possession differs from cause
of action for trespass
– In trespass, there is a wrongful entry, not wrongful
possession
Basic Requirements-Judicial
Gloss
 Actual
 Open and notorious
 Continuous
 Exclusive
 Hostile and under claim of right
– (claim of right not the same as color of title)
Underlying Policies
 Penalize true owner for sitting on rights too
long
 Reward possessor for productivity
Blackacre
Have you read the
Redbook or the
Greenbook for the
first time.
If not, do it
tonight?
Jarvis v. Gillespie
 What are the facts of this case?
Jarvis v. Gillespie-Facts
 Waterville acquires title in 1935 from estate
of true owner
 In 1947, plaintiff purchased the adjoining
land
Jarvis v. Gillespie-More Facts
 Between 1947 and 1986 plaintiff wrongfully used
defendant’s land to
– graze cattle, park vehicles, logging operations, store wood
– plaintiff maintained fence, tapped trees, planted trees, cut
trees
– posted “no trespassing signs”
 In 1986 Waterville (the record title owner) conveys to
defendant
 Plaintiff sues for declaratory judgment that it owns disputed
land
Jarvis v. Gillespie-Test of Actual
 Use of land as a reasonable owner would use the
land--not necessarily its highest and best
use--“Possession gauged by actual state of the
land”
 “Simply because a parcel may be susceptible to
uses other than those to which the claimant chose
to put it does not necessarily lead to the conclusion
that the claimant failed to act toward the parcel as
an average owner would have” (Page 167)
Jarvis v. Gillespie-Test of
Continuous
 Occupant needn’t be present at all times
 “The kind and frequency of the acts of
occupancy, necessary to constitute continuing
possession, are dependent on the nature and
condition of the premises as well as the uses to
which it is adapted.” (Page 168)
 Seasonal possession
– Cabin in Colorado
Jarvis v. Gillespie-Test of Open
and Notorious
 Acts are open and notorious “if they are
conducted in a manner which would put a
person of ordinary prudence on notice of the
[adverse] claim
Jarvis v. Gillespie-Test of
Hostility
 Not the same as ill-will
 “Adverse possessor intends to claim the land
and treat it as his own
– Objective hostility
– Subjective hostility
Jarvis v. Gillespie-Adverse
Possession against the State
 How, in this case, can the possessor acquire an
adverse possession against the state given the
general rule that one cannot acquire a title by
adverse possession against the state
(government)?
Open and Notorious
 A enters O’s land. While A’s act appear to fall
short of being sufficiently open to put an
ordinary person on notice, in fact, O has actual
notice of A’s possession. A’s possession is
otherwise actual, continuous, exclusive and
hostile. If O sues A after the statutory period
has run, who wins?
Marengo Cave

Welcome to Marengo Cave

A=Adverse Possessor
O=True Owner
Tacking
 What is the meaning of tacking in the context of
adverse possession?
 O owns Blackacre
– A enters in 1980
– A sells “his right, title and interest, if any” to B in
1984
– B goes into possession of Blackacre
– O sues B in 1992
– Who wins? (If it depends on what does it depend?)
More on Tacking
 What other connections between A and other
successors in possession would give rise to
tacking
– Gifts, bequests, mortgages
• Oral/Written/Permissive
– Ousters
 Problems (a)-(f) on page 186
Tolling
 What is the concept of tolling
 Typically, what sorts of disabilities qualify for
tolling
– Minority (under the age of 18)
– Mental incompetency
– Imprisonment
– Soldiers and Sailors
Tolling (The Ohio Statute)
 An action to recover the title
to or possession of real
property shall be brought
within twenty one years after
the cause of action accrued, Problems, Page 188
but if a person entitled to Problems Page
bring the action is, at the time 175
the cause of action accrues,
within the age of minority or
of unsound mind, the person,
after the expiration of twenty
one years from the time the
cause of action accrues, may
bring the action within ten
years after the disability is
removed.
Rightful Entry; Wrongful Staying
 Typically, AP enters wrongfully and stays
wrongfully
 Co-tenants
 Tenant/Landlord
 Life tenant/remainderman
 Heirs and devisees
Hostility and under Claim of
Right
 Objective vs. Subjective hostility

Watch what I do
Not what I say
Mannillo v. Gorski-The Facts

O A
Mannillo v. Gorski-The
Questions
 Under the Maine rule, if A testifies he thought
he’d built up to the true boundary line, who
would own the blackened strip?
 Under the so-called Connecticut rule, would
A’s state of mind matter?
 Why does the court reject both the Maine and
Connecticut rule?
 What rule does the court substitute for them?
Mannillo v. Gorski-Condoning
Perjury
 Interviewing the client
Carpenter v. Ruperto
 What are the facts of this case?
 Plaintiff claims title to disputed 60’ strip on
which she had planted bushes, installed a propane
tank, constructed a dirt tank to divert water, and
built a driveway for over a 30 year period
 Which criteria does defendant claim plaintiff
failed to satisfy?
– Claim of right
Carpenter v. Ruperto-Holding
 What does the court hold?
– Court adopts the “good faith” test to the effect that a
person who knows he does not have title cannot acquire
a title merely by possessing the property
Carpenter v. Ruperto
 Is the court’s analysis convincing in light of the
policies underlying the doctrine of adverse
possession?
 What would plaintiff have needed to acquire a title
by adverse possession?
– Color of title
Innocent Improver Doctrine

A
O A

What are the options?

Color of Title
A

AP enters to the right of line A-B under Deed

describing all of Blackacre
Color of Title-Adjoining Lots
O owns lots 1-4

1 2 3 4

AP enters Lot 1 under deed describing Lots 1 and 2

AP enters Lot 1 under deed describing Lots 1 and 3

Suppose O owned Lot 1 and O-1 owned Lot 2

Solomon R. Guggenheim
Foundation v. Lubell
 What are the facts of this case?
Solomon R. Guggenheim
Foundation v. Lubell
 What are the competing possibilities for when the statute of
limitations should run?
– From time of theft
– From time painting comes into hands of a BFP
– Discovery
• Actual
• Reasonably should have discovered
• Cessation of diligent search
– Demand and refusal
• But, s.Subject to reasonable diligence IN searching for lost
art(rejected)
 Federal Certification procedure