McAvoy v.

Medina

Supreme Court of Massachusetts, 1866

A barbershop poll like the one which may have been outside the shop in this case

Justice Charles Augustus Dewey

McAvoy
Facts: Facts: Plaintiff, customer in defendant s shop, found a wallet on a table and turned it over to defendant. Defendant decided to keep it when the owner couldn t be found. Issue: Who has a superior right to found goods, the customer or the shop owner?

Adverse Possession

You need to show an

OCEAN

to prevail

Open and notorious occupancy -- occupancy must be public in the sense of not being surreptitious. Live there like the true owner would. Continuous occupancy -- for the statutory period. Exclusive of the rights of others, just like an owner. Actual entry is required in order to start the SoL on a cause of action for ejectment and to give notice by your presence. No permission this is traditionally stated as: Hostile or Adverse and under a claim of right. right. But, be aware there are three views on this element.

RELATION BACK
Once the statute of limitations runs on a landowner s ejectment claim, it not only bars the former owner s claim but also vests title in the adverse possessor that relates back to the date the claim arose. Thus, title by AP is retroactive The law retroactive. treats the new owner as if she had held title since she entered the land adversely.

Van Valkenburgh v. Lutz

New York Ct. of Appeals, 1952

Metro Goldwyn Meyer

Mary and William Lutz

Color of Title
The color of title doctrine refers to a claim founded on a written instrument that is for some reason defective. Think of a document you could color color.

Color of Title Issues

1. In all states, an adverse possessors actual possession of some part of anothers real property under color of a document of title that covers all of the property gives the claimant constructive possession of the described property she hasnt actually occupied. 2. In some states, a claimant under color of title may have a shorter statutory period or receive other benefits in her adverse possession claim. 3. In most states, color of title is not an element of AP. But, claim of title (or claim of right or hostility) always is.

Problems Page 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 works the 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 feature does not

P. 135
2) X owns lot 1 and Y owns lot 2 next door. Neither is in possession. Z conveys both lots 1 and 2 to A under an invalid deed. A enters lot 1 and holds for the statutory period. A sues to evict X and Y. Who wins?

What if X had conveyed lots 1 & 2 to A and A had entered only lot 1?

What about lot 2?

What if X had conveyed lots 1 & 2 to A and A had entered lot 2? What about lot 2?

Supreme Court of New Jersey, 1969

Mannillo v. Gorski

www.innoftheshepard.com Linda Treash

Gorski s innocent design plans

encroachment onto Mannillo

s land caused Manillo to rethink he

Facts: Defendants added steps and a concrete walk to their house in 1946. These encroached on P s 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?

Adverse and Under Claim Of Right *

The state of mind different States require to satisfy the adversity element varies: Majority/Objective Rule: State of mind is generally irrelevant. As long as the owner has not permitted occupancy, it is adverse. Good Faith Rule: State of mind is: My bad. I thought I owned it.

Bad Faith Rule: State of mind is: I knew I didn t own it. This one makes little sense and is rare, at best. *NB: Claim of title, claim of right, and are synonyms. Do not confuse them with title. hostile color of

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.

Tacking and Privity

TACKING: The joining of consecutive periods of possession by different persons to treat the periods as one continuous period; esp., the adding of one s own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period. Black s Law Dictionary (7th ed.). NB: In order to tack one period of adverse possession on to another, there must be privity between the two adverse possessors.

PRIVITY Think of privacy as a reminder -PRIVITY: theres a special relationship between these parties compared to the public at large.

Privity of Contract is the relationship between parties to a contract. Generally, only the parties can sue one another on the contract. Privity of Estate is the relationship between 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.

Disability Statutes
One Example: An action to recover the title to or possession of real property shall be brought within twentyone years after the [claim] accrued, but if a person 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.

Disabilities 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!

Disabilities and the SoL

There are two keys to applying the disability statute to a SoL: 1. A disability is immaterial unless it existed at the time when the cause of action accrued. 2. Only the disabilities of the landowner at the time of adverse entry count, not the disabilities of later owners.

Problems Page 148

(1) 1996, A enters adversely upon Blackacre, owned by O. In 2003, B kicks A off of Blackacre. B enters into possession. In 2006, who owns Blackacre?

Page 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) O s heir, H, is under no disability in 2003.

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

O--------------------+-------------------------------+------------>

A enters 5/1/80 +21 = 2001

Ordinarily would run in2001 O is the owner in 1980 and A enters adversely 5/1/80. 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.

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

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

Disability Problem 2 --Page 149 --Page

O has no disability in 1980. O dies intestate in 1998. O's heir, H, is two years old in 1998. 1980+ 21 = 2001.

3. O is 5 years old in 1980. In 1990, O becomes mentally ill, and O dies intestate in 2005. O's heir, H, is under no disability. Does the adverse possessor here acquire title in 2001, 2003, or some 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 for O in 1980?