week3 slides.2 pre

8/3/2019 Week3 Slides.2 Pre

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McAvoy v. MedinaMcAvoy v. MedinaSupreme Court of Massachusetts, 1866Supreme Court of Massachusetts, 1866

Justice Charles Augustus Dewey

A barbershop poll like the

one which may have been

outside the shop in this case


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McAvoyMcAvoy

FactsFacts:: Plaintiff, customerPlaintiff, customerin defendantin defendants shop,s shop,

found a wallet on a tablefound a wallet on a tableand turned it over toand turned it over todefendant. Defendantdefendant. Defendantdecided to keep it whendecided to keep it when

the owner couldnthe owner couldn

t bet befound.found.

Issue: Who has a superior right to found

goods, the customer or the shop owner?


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Adverse PossessionAdverse Possession

You need to show anYou need to show an OCEANOCEAN to prevailto prevail


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Open and notoriousOpen and notorious occupancyoccupancy ---- occupancyoccupancymust bemust be publicpublic in the sense of not beingin the sense of not being

surreptitious. Live there like the true ownersurreptitious. Live there like the true ownerwould.would.

ContinuousContinuous occupancyoccupancy ---- for the statutoryfor the statutoryperiod.period.

ExclusiveExclusive of the rights of others, just like anof the rights of others, just like anowner.owner.

Actual entryActual entry is required in order to start the SoLis required in order to start the SoLon a cause of action for ejectment and to giveon a cause of action for ejectment and to give

notice by your presence.notice by your presence.No permissionNo permission this is traditionally stated as:this is traditionally stated as:HostileHostile ororAdverse and under aAdverse and under aclaim of rightclaim of right.. But, be aware there areBut, be aware there are

three viewsthree views on this element.on this element.


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RELATION BACKRELATION BACK

Once the statute of limitations runs on a

landowners ejectment claim, it not only

bars the former owner

s claim but alsovests titlevests title in the adverse possessor that

relates backrelates backto the date the claim arose.

Thus, title by AP is retroactiveretroactive. The law

treats the new owneras ifas ifshe had held

title since she entered the land adversely.


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Van Valkenburgh v. Lutz

New York Ct. of Appeals, 1952

Mary and William Lutz

Metro Goldwyn Meyer


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Color of Title

The color of title

doctrine refers to a

claim founded on a

written instrumentwritten instrumentthat is for some

reason defective.

Think of a documentdocument

you could colorcolor.


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Color of Title Issues

1. In all states, an adverse possessors actualactualpossession of some part of anothers realproperty under color of a document of titlethat covers all of the property gives the

claimant constructive possessionconstructive possession of thedescribed property she hasnt actuallyoccupied.

2. In some states, a claimant under color of title

may have a shorter statutory period or receiveother benefits in her adverse possession claim.

3. In moststates, color of title is notan elementof AP. But, claim of title (or claim of right orhostility) always is.


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ProblemsProblems Page 135Page 135

1) O owns a 100 acre farm [and possesses the

front 60 acres]. A enters the back 40 acres

under an invalid deed from Z (who had no

interest) for the whole 100 acres. A worksthe back 40 for the statutory period. Can A

evict O?--- constructive possession doesnt

trump actual poss..not as to the front that o

poss. The color of title cons poss featuredoes not


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P. 135

2) X owns lot 1 and Y owns lot 2 next door.Neither is in possession. Z conveys bothlots 1 and 2 to A under an invalid deed. Aenters lot 1 and holds for the statutory

period. A sues to evict X and Y. Whowins?


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What ifX had conveyed lots 1 & 2 to A

and A had entered only lot 1?

What about lot 2?


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What ifX had conveyed lots 1 & 2 to A

and A had entered lot 2?

What about lot 2?


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Mannillo v. Gorski

Supreme Court ofN

ew Jersey, 1969

Gorskisinnocent encroachment onto Mannillos land caused Manillo to rethink

design plans

Linda Treash

www.innoftheshepard.com


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Facts: Defendants added steps and a

concrete walk to their house in 1946.These encroached on Ps land by 15

inches.

Statute is 20 years in New Jersey.Ps sued to move the encroachment in late

60s, and Ds claimed adverse possession.

Issues: Is (i) mistaken possession of (ii)border property sufficiently open and

hostile?


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Adverse and Under Claim Of

Right

*Thestate of mind different States require to satisfy theadversity element varies:

Majority/Objective Rule: State of mind is generallyirrelevant. As long as the owner has not permittedoccupancy, it is adverse.

Good Faith Rule: State of mind is:I thought I owned it.My bad.

Bad Faith Rule: State of mind is:I knew I didnt ownit. This one makes little sense and is rare, at best.

*NB:Claim of title,claim of right, andhostileare synonyms. Do not confuse them with color oftitle.


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Howard v. Kunto

Court of Appeals of Washington, 1970

Dale Ireland KOMO Television

Pictures of the Hood Canal where the property dispute takes place.

Unlike some others slides, these are legitimate.


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Tacking and PrivityTacking and Privity

TACKING:The joining of consecutive periods ofpossession by different persons to treat theperiods as one continuous period; esp., the

adding of one

s own period of land possessionto that of a prior possessor to establishcontinuous adverse possession for the statutoryperiod. Blacks Law Dictionary (7th ed.).

NB: In order totack one period of adversepossession on to another, there must be privityprivitybetween the two adverse possessors.


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Privity of Contract is the relationshipbetween parties to a contract. Generally,

only the parties can sue one another onthe contract.

Privity ofEstate is the relationshipbetween parties with concurrent or

successive rights in the same property. Privity of Possession is the relationship

between parties in a voluntary transfer of

possession of property.

PRIVITYPRIVITY: Think of privacy as a reminder --

theres a special relationship between these

parties compared to the public at large.


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Disability StatutesDisability Statutes

One Example:

An action to recover the title to or possession

of real property shall be brought within twenty-

one years after the [claim] accrued, but if aperson entitled to bring such action, at the time

the [claim] accrues, is [disabled], then after the

expiration of the twenty-one years, [she] may

bring such action within ten years after such

disability is removed. ~Text, p. 149.


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Disabilities and the SoLDisabilities and the SoL

WHAT QUALIFIES AS A DISABILITY?

When the landowner is:

1. Within the age of minority,

2. Of unsound mind, or

3. Imprisoned.

NB: In some states, other disabilities, such as

serving in the military, may count. Check your

statute!


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Disabilities and the SoLDisabilities and the SoLThere are two keys to applying the disability

statute to a SoL:

1. A disability is immaterial unless it existedat the time when the cause of action

accrued.

2. Only the disabilities of the landowner atthe time of adverse entry count, not the

disabilities of later owners.


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Problems Page 148

(1) 1996, A enters adversely upon Blackacre,owned by O.

In 2003, B kicks A off ofBlackacre.

B enters into possession.In 2006, who owns Blackacre?


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Page 149, Problem 1Page 149, Problem 1

O is the owner in 1980, and A enters

adversely on May 1, 1980. The age of

majority is 18.

1) O is insane in 1980. O dies insane and

intestate in 2003.

a) Os heir, H, is under no disability in

2003.


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Disability Problem 1(a)Disability Problem 1(a) ----Page 149Page 149

A enters 5/1/80 +21 = 2001O--------------------+-------------------------------+------------>

Ordinarily would run in2001

O is the owner in 1980 and A enters adversely5/1/80.

The age of majority is 18.

21 year statute of limitations. O is insane in 1980. O dies insane and

intestate in 2003.

a)O's heir, H, is under no disability in

2003.


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Disability Problem 1(b)Disability Problem 1(b) ----Page 149Page 149

b) O's heirH is six years old in 2003.


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Disability Problem 2Disability Problem 2 ----Page 149Page 149

O has no disability in 1980. O dies intestate in1998. O's heir, H, is two years old in 1998.

1980+ 21 = 2001.


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3. O is 5 years old in 1980. In 1990, O becomesmentally ill, and O dies intestate in 2005. O's

heir,H

, is under no disability. Does the adversepossessor here acquire title in 2001, 2003, orsome later date? If the answer is 2001 or 2003,how are O's interests to be protected?

What is normal statute result?

What disability existed forO in 1980?

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