PROPERTY

Pre-lecture 4.1
Professor Kathleen Morris
Golden Gate University
School of Law
 Topics In Today’s Readings
• What is “adverse possession”? What
are the elements of adverse
possession?
• How do courts interpret and apply each
element of adverse possession?
• What does “color of title” mean?
• What is a “squatter”?
• What is “tacking”?
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• Adverse possession: A process by which a person who lacks legal
title to property can acquire legal title without having had the
property transferred (via purchase or gift).
• Somewhat confusingly, either the adverse claimant or the true
owner can be a plaintiff in an adverse possession lawsuit.
• The adverse claimant might bring a claim as a plaintiff to “quiet
title” in the property. In this case the true owner is the named
defendant in the case.
• Alternatively, the true owner may bring a claim for trespass,
seeking ejectment of the adverse claimant. The claimant will then
assert adverse possession as a defense to trespass and ejectment
rather than as a claim. (If he or she wishes to, the adverse
claimant can file a cross-complaint against the true owner.)
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• The elements of adverse possession are:
• (1) actual possession;
• (2) that isper visible (“open and notorious”);
• (3) that is exclusive;
• (4) that is continuous;
• (5) that is without permission (“adverse or hostile”);
• (6) for the minimum statutory period in the relevant
jurisdiction.
• The adverse claimant must prove each of these elements
by clear and convincing evidence. This is the standard
regardless of whether the adverse claimant is the plaintiff
or the defendant in the case.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (1) “actual possession” means: the adverse claimant treated the land as an
average owner would. This is a question of fact, and thus highly contextual.
• The best evidence of possession is that the adverse claimant enclosed the
property with a fence and treated it as her own.
• Absent a fence, to establish possession the adverse claimant must prove he
or she engaged in “significant activities” on the land. Acts that may be
found sufficient to establish possession include: building on the land, living
on the land, conducting a business on the land, farming the land, clearing
the land, and planting shrubs on the land.
• An adverse claimaint can only lay claim to land he actually possessed.
EXCEPTION: If the adverse claimant is claiming under “color of title,” he
need not occupy the entire parcel to establish ownership of the entire
parcel. Instead, he will be deemed to have occupied the entire parcel
described in the faulty deed (see rule on Slide No. 11 & Romero v. Garcia,
below).
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (2) “visible” (or “open and notorious”) possession
means: the possessory act is sufficiently visible and
obvious to put a reasonable owner on notice that her
property is being occupied by a non-owner. NOTE: Proof
of actual notice is not required!
• Enclosing property using a fence or a wall is sufficiently
“visible” as a matter of law.
• Absent a fence, acts that may be found sufficient to
establish “visibility” may include: building a structure,
clearing the land, laying down a driveway, or using the
land at issue for parking, storage, garbage removal,
picnicking, planting, and/or harvesting.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (3) “exclusive” possession means: The adverse
claimant’s possession was not shared with the
true owner. (Possession may be shared with
persons who are not the true owner.)
• The adverse claimant must show the owner
was generally excluded from the property.
• NOTE: Two adverse claimants who possess
property jointly may acquire joint ownership
rights as co-owners via adverse possession.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (4) “continuous” possession means: Possession was
never abandoned during the statutory period. NOTE:
This does not mean the adverse claimant had to stay
on the property 24-7! It means he had to use it like
the owner would, and not abandon it as an owner
would not, during the statutory period.
• NOTE: This is highly contextual. If, for instance, the
property is a vacation cabin, continuous is satisfied if
the adverse claimant used it as a person with
vacation cabin in that location would use the cabin.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (5) “without permission” (“adverse or
hostile”) means: the true owner has not given
permission for the use.
• If the true owner expressly gives permission,
the adverse claimant cannot satisfy this
element.
• If the true owner expressly denies permission
(orally or via a “No Trespassing” or “Stay Out”
sign), the adverse claimant can satisfy this
element.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• (6) for the minimum statutory period in that State
• A common issue that comes up regarding statue of
limitations is TACKING!
• Tacking is when the law permits periods of possession by
a series of non-owners to be “tacked together” to
satisfy that State’s statutory period for adverse
possession.
• For tacking to be allowed, the adverse claimant must
prove that each prior possessor peacefully conveyed the
property to a subsequent possessor and all possessors in
the chain of possession satisfied the elements required
for adverse possession.
 List of Blackletter Rules From Today’s Reading
(the “R” in “IRAC”):
• An adverse possession claim “under color of title” exists
when a written instrument purports to pass title to the
claimant, but is ineffective because of a defect in the means
of conveyance or because the grantor did not actually own
the land he purported to convey.
• A flawed deed is not void for color of title purposes for lack
of proper description if a surveyor can ascertain the parcel’s
boundaries using (1) the language of the deed, (2) extrinsic
evidence on the ground, and (3) the acts of the parties.
• No Adverse Possession of Public Land: In a majority of
jurisdictions, a person may not establish adverse possession
over public land as a matter of law.
 Brown v. Gobble (WVA 1996)
Start your analysis of cases and problems with
these basic questions:
(1) Who are the parties?
(2) What is the relationship between the
parties?
(3) What property right(s) are they fighting
over?
 Let’s IRAC This Case!
FIRST ISSUE (OF 2): Whether the “preponderance of the
evidence” standard, or alternatively the “clear and convincing
evidence” standard, applies to adverse possession claims.
R: The clear and convincing evidence standard applies to
adverse possession claims.
A: While the preponderance standard typically applies to civil
cases, fairness and equity sometimes require more persuasive
proof. The interest at stake in adverse possession cases is the
loss of property, which is among the highest-level interests in
the jurisdiction.
C: The Gobbles can only prevail if they can establish clearly and
convincingly each element of their claim for adverse possession.
 Let’s IRAC This Case!
SECOND ISSUE (OF 2): Whether the Gobbles clearly and convincingly established
each element of adverse possession with respect to the 2-foot strip of land in
dispute.
R: 6 elements of adverse possession (see above).
A: Five of the six elements required for adverse possession are clearly established.
The Browns presented no evidence on any issue. The Gobblers presented evidence
that they and their predecessors had fenced off and used the two-strip portion of
land since 1937; and had actual, visible, exclusive, continuous, possession of the 2-
foot strip. The Gobblers only had possession for 9.5 years and the statutory period
in WVA is 10 years. However, the Gobblers acquired the property through bona fide
conveyances by prior owners of their property, all of whom fenced and used the
contested strip of property, stretching all the way back to 1937. Thus either (1) were
conveyed the strip after a predecessor already owned it; or (2) the Gobblers
established they could tack on prior years to satisfy the statutory period.
C: The Gobblers appear to have established each element of adverse possession
with respect to the 2-foot strip of land in dispute. The case is remanded to the trial
court for further consideration consistent with this opinion.
 Romero v. Garcia (NM 1976)
Start your analysis of cases and problems with
these basic questions:
(1) Who are the parties?
(2) What is the relationship between the
parties?
(2) What property right(s) are they fighting
over?
 Let’s IRAC This Case!
FIRST ISSUE (OF 2): Whether a deed that is legally void (in
this case because one of the owners of the parcel in
dispute did not sign off on the conveyance of that parcel)
counts as “color of title.”
R: A deed that is legally void counts as “color of title.”
A: (There is no analysis in the quoted portion of the
opinion. But the whole idea behind “color of title” is you
have a deed that is legally void. You are trying to enforce
a property interest even though the deed is legally void.)
C: The deed can be treated as “color of title” for purposes
of trying to establish ownership by adverse possession.
 Let’s IRAC This Case!
SECOND ISSUE (OF 2): Whether the plaintiff’s deed is
sufficiently clear in its description of the 13 acres to establish
adverse possession.
R: A flawed deed is not void for color of title purposes for lack
of proper description if a surveyor can ascertain the parcel’s
boundaries using (1) the language of the deed, (2) extrinsic
evidence on the ground, and (3) the acts of the parties.
A: A surveyor using the deed, the position of fences, and the
position of natural resources on the property was able to
ascertain the boundaries described in the deed.
C: The plaintiff’s deed was not void for color of title purposes.
 Nome 2000 v. Fagerstrom (Alaska 1990)
Start your analysis of cases and problems with
these basic questions:
(1) Who are the parties?
(2) What is the relationship between the
parties?
(3) What property right(s) are they fighting
over?
 Let’s IRAC This Case!
FIRST ISSUE (OF 2): Whether a jury could reasonably conclude
Fagerstrom’s activities on the land between July 1977 and the
summer of 1978 (when they built a cabin) were sufficient to
establish adverse possession.
R: The elements of adverse possession are: (1) actual possession;
(2) that is visible (“open and notorious”); (3) that is exclusive; (4)
that is continuous; (5) that is without permission (“adverse or
hostile”); (6) for the minimum statutory period in the relevant
jurisdiction.
A: On these facts, a jury could reasonably find the Fagerstroms
established the elements of adverse possession between July
1977 and the summer of 1978.
C: The jury verdict in favor of the Fagerstroms is upheld.
 Let’s IRAC This Case!
SECOND ISSUE (OF 2): Whether a jury could reasonably conclude
Fagerstroms adversely possessed the southerly portion of the staked out
parcel.
R: The elements of actual possession and visible possession both require
the claimant to show he or she took acts of dominion and control as if
they were the owners of the property at issue.
A: A jury could NOT reasonably find the Fagerstroms had actual, visible
possession of the southerly portion of the staked-out parcel for the
statutory period. Their only activities there were to use the land for hiking
and recreational activities. Their only maintenance of the land was to pick
up litter. These activities are insufficient to show dominion and control.
The presence of stakes or posts does not overcome this problem.
C: The trial court should have granted the plaintiff’s motion for a directed
verdict as to the southerly portion rather than allowing that issue to go to
the jury. The case is remanded for resolution consistent with this opinion.
 Problems
1. Please pick apart the court’s analysis in Brown v. Gobble, as follows:
(1) Draw the full timeline of events; and (2) make a list of every fact
and witness relevant to every element of adverse possession as
applied to each of the three families who at different points possessed
the property in dispute (the Blevens, the Fletchers, and the
Gobbles).Based on the language in the opinion, why was the appellate
court in Brown v. Gobble displeased by the trial court’s resolution of
the case?
2. Please pick apart the court’s analysis in Nome 2000 v. Fagerstrom, as
follows: (1) Draw the full timeline of events; (2) make a list of every
fact and witness relevant to every element of adverse possession
during the relevant time period; and (3) consider whether you agree
with the appellate court’s decision to reverse the trial court’s denial of
a directed verdict with respect to the southerly portion of the parcel.