ADVERSE POSSESSION

Adverse Possession Principles

1. Rules

   1. Adverse possession. A “disseisor” (D) may claim title to an owner’s (O’s) land after (1) an entry that is (2) open and notorious, (3) continuous for the statutory period; (4) adverse or hostile (“under claim of right”); and (5) exclusive.

      1. Entry. Must be “actual” possession; in some jurisdictions this requires an enclosure or cultivation and improvement. Van Valkenburgh.

         1. N.Y. Requires clear and positive proof of use of whole premises claimed. Van Valkenburgh.

         2. Majority. D may claim what he occupies; see, infra, regarding constructive AP.

      2. Open and notorious. D must adversely possess property in a manner...

         1. Objective. ...that a reasonably diligent O would recognize.

         2. Subjective....that O recognizes; “actual knowledge” may be presumed. But see Mannillo, infra.

      3. Continuousness. D must use property in manner “as ordinarily marks conduct of owners” for the entire statutory period. Howard.

         1. Laches exception. Some courts may exercise equity when statutory period barely not met.

      4. Adverse or hostile. There are four possible standards for this requirement:

         1. Objective (majority). Intent of D does not matter.

         2. Good-faith. D believed he owned the property, Van Valkenburgh.

         3. Under “claim of title.” D had an erroneous deed listing property as his own, Howard.

         4. Aggressive. D intended to make O’s property his; sometimes D must compensate O to make up for the moral wrong of trespassing. Preble v. Maine Cent. R.R. Co. (Me. 1893).

      5. Exclusive. O must not use the property as his own or rent the property to D during the statutory period.

2. Analysis

   1. Justifications for adverse possession. Adverse possession is similar to finders’ law, in that D may possess property without O’s consent. The law tends to balance the merit of the possessor against the demerit of the original owner (O).

      1. J.S. Mill, Principles of Political Economy (1848) (Supp. I, 193).

         1. Efficiency. “Even when the acquisition was wrongful, the dispossession, after a generation has elapsed, of the probably bona fide possessors, by the revival of a claim which had been long dormant, would generally be a greater injustice, and...mischief, than leaving the original wrong without atonement.”

      2. Powell on Real Property §91.01 (2009) (116).

         1. Security. “It rests upon social judgments that there should be a restricted duration for the assertion of ‘aging claims,’ and that passage of a reasonable time period should assure security to...an owner.”

      3. Henry W. Ballantine, Title by Adverse Possession (1918) (117).

         1. Predictability. Adverse possession is not “to reward the diligent trespasser...[or] penalize the negligent...;the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing.”

      4. Oliver Wendell Holmes, The Path of the Law (1897) (118).

         1. Psychology. “Sometimes the loss of evidence is referred to....Sometimes the desirability of peace.... But the connection ...is in the nature of man’s mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act....”

   2. Entry requirement. This creates the cause of action (trespass or ejectment) that triggers the statute of limitations. Without entry by D, O may not act to dislodge him. D only begins to “earn” rights by entry.

   3. Open and notorious requirement. The law cannot blame an owner for “sleeping” on rights if he did not know D was trespassing. Courts have shifted from presuming knowledge in urban areas with ill-defined boundaries to requiring “actual knowledge” but with possibility of keeping encroachment in exchange for compensation if removal is impractical. See Mannillo, infra.

   4. Continuousness requirement. This is not literal; D may come and go given the nature of the property in question. Possession required is contextual and analogous to acquisition by capture. Howard.

   5. Adverseness requirement. This is sometimes interpreted to mean D seeks O’s property or D thinks property is his own. “Color of title” requires an erroneous deed.

      1. Objective (majority). Intent of A does not matter because O has cause of action regardless of A’s mental state, and law focuses on demerit of O. Totman v. Malloy (Mass. 2000).

      2. Good-faith. This is compatible with “hostility,” e.g. D believes land is his but deed says it actually belongs to O. Halpern v. Lacy Investment Corp. (Ga. 1989). New York briefly overruled this standard in Walling v. Przybylo (N.Y. 2006), but legislature passed good-faith statute in 2008 on grounds that it is unfair to reward A who takes property in bad faith.

      3. Aggressive. This is fair if law focuses exclusively on O’s demerit, especially since A may have to compensate O. Compensation has been rejected for prescriptive easements. Warsaw v. Chi. Metallic Ceilings, Inc. (Cal. 1984).

   6. Exclusivity requirement. Similar to acquisition law, although multiple Ds can adversely possess property together (e.g. a family of trespassers). But see Tacking.

3. Major Cases

   1. Van Valkenburgh v. Lutz (N.Y. 1952) (122)

      1. (Dye, J.) Δ spent 15+ years gardening on lot and selling veggies. After neighbors bought lot, Δ brought action admitting that Π owned lot but Δ had right to an easement over right of way near border. Π later sued. N.Y. “entry” rule required possession of “whole” of premises, and N.Y. “adverse” rule was “good faith,” so Δ loses because he did not believe he actually owned lot.

      2. (Fuld, J., dissenting) Δ did use nearly all of property. Δ testified that he believed property was Π’s after statute of limitations had ended, so Δ already had title regardless of testimony.

   2. Ewing v. Burnet (U.S. 1837) (Supp. I, 195)

      1. (Baldwin, J.) Π had title to unoccupied gravel pit but did not enter, demand possession, or exercise ownership after Δ was sold land by same seller years later. Δ entered but did not occupy or enclose pit;...

Buy the full version of these notes or essay plans and more in our Property Outlines.