Property Law Outline - Adverse Possession

  1. Rationale For/Arguments Against
    1. Policy Reasons for Adverse Possession
      1. Want to encourage productive use.
      2. Don't want people to sleep on their property rights.
      3. Creates an incentive for property owners to check boundaries and eject trespassers.
      4. Efficient way to settle boundary disputes.
      5. Promotes security of investment.
      6. Personhood theory (endowment effect).
    1. Arguments Against Adverse Possession
      1. Property owner never has absolute security in his rights.
      2. High transaction costs on forcing owner to remove trespassers.
      3. Creates an incentive for trespass.


  1. Requirements
    1. Actual
      1. Adverse possessor must use the land as it is normally used, goes to the policy that land should be used productively. (see Howard v. Kunto, below)
      1. Only has right to land that adverse possessor used.
        1. Exception: adverse possessor who holds "color of title" gains title to all land described in deed, not just the land actually possessed/used.
    1. Exclusive
      1. Adverse possessor must be the only one using the land, not the true owner as well.
    1. Open and Notorious
      1. Use must be obvious to the true owner if he were there.
      2. No attempt to disguise or hide use of the land.
      1. Ex. Mannillo v. Gorski (p.84)
        1. D and P lived in urban area; D raised house, unknowingly extended steps 15 inches onto P's property. P sued for trespass, D claimed AP.
        2. Held that when the encroachment is a minor one along a common border, the true owner must have actual knowledge of the encroachment for the possession to be open and notorious. No assumption of knowledge in minor encroachments. Would be inefficient to make owner survey land continually. However, owner may be forced to convey property to encroacher for fair value.
    1. Continuous for the Statutory Period
      1. SOL varies by state - states in East longer time required (15-30 yrs) than in West (<= 10 yrs).
        1. Does not run if true owner is incapacitated (insanity, imprisonment, legal infancy).
      1. Tacking - current adverse possessor may be able to add time from previous adverse possessor to meet the SOL if the two adverse possessors are in privity.
        1. Some states require good faith, some require color of title, others don't allow.
      1. Ex. Howard v. Kunto (Supp)
        1. All of the deeds were wrong, everyone was on the wrong land. Land was used for summer houses. D claimed AP for the lot where he built a summer house.
        2. Held that tacking was allowed if the land is occupied under mistake of fact and the occupants are in privity. Also, continuity is established if the land is used as the land is normally used (summer usage sufficient).
    1. Under Right of Title (Hostile?)
      1. Connecticut Rule (Majority rule)
        1. No inquiry into state of mind.
        1. Fine if mistake, fine if good faith, fine if bad faith. Focus on lack of permission from true owner. If permissive, no AP.
          1. Ex. Mannillo v. Gorski (p.84)
            1. D and P lived in urban area; D raised house, unknowingly extended steps 15 inches onto P's property. P sued for trespass, D claimed AP.
            2. Held that state of mind is irrelevant for AP in NJ. Even if grounded in mistake, AP allowed.
      1. Maine Rule (Minority rule)
        1. Must inquire into state of mind.
          1. Some require AP to know land isn't theirs but hope to acquire.
          1. Some require AP to mistakenly believe they are the true owner or have color of title.
        1. Creates incentive to lie.


  1. Adverse Possession and Art
    1. Most of the elements of AP work reasonably well with objects.
      1. Issue arises with "open and notorious" element, because an object is difficult to possess openly or notoriously because it is likely that the true owner won't even realize/see it.
    1. Issue is rectified through SOL for actions of trover, conversion, and replevin (act to recover the property).
      1. SOL does not accrue until the true owner discovers: (1) that it is stolen; (2) discovers its whereabouts and (3) makes a demand for its return.  Once the possessor refuses to return it, the SOL begins to run.
      2. Exception: SOL only does not accrue when the true owner is searching diligently for the object.  One the true owner stops searching, the SOL begins to run.
    1. Art law: Claims can be made by individuals, groups, or gov't bodies.
      1. Personhood theory: Example w/ pieces of the Parthenon is that they are essential to the Greek identity.
      2. NOTE: Do some artifacts belong to all mankind?  Can you throw darts at a Rembrandt if you own it?  Can the Taliban destroy historic statutes?
      3. Another important issue is whether the person who transferred title has the right to do so.