1. introduction: the power of legislature to allocate wealth


Elements to Prove Adverse Possession



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Elements to Prove Adverse Possession:

  • Good faith belief that you own land, or knowledge that you do not own land but intend to take land through adverse possession

  • Can’t have adverse possession if have permission of owner to live on land

  1. Possession must be actual

  2. Possession must be open and notorious

      • must make it public knowledge that you think you own land

      • i.e. act towards property as if you were the owner.

  3. Possession must be exclusive

  4. Possession must be continuous

      • occupant abandoning possession (leave without intent to return) will break continuity

      • But occupant does not have to be present at every instant

      • Tacking = to use a predecessor's time of adverse possession there must be privity of estate between occupant and predecessor

  • Statute of Limitations = adverse possession matures into full property ownership (fee simple) after passing a certain period of time, generally, twenty years.

    • If true owner has a disability, e.g. infancy, insanity, or imprisonment, existing at start of adverse possession, the statute of limitations for the occupant will not begin running until disability is removed

  • If adverse occupier uses part of land but claims entire property, does she get it all?

    • If occupier claims title to all, she will receive all even if only occupied part

    • If occupier cannot or does not claim title, she will only receive part of land that she actually adversely possessed

  • Just Compensation and Adverse Possession

    • If government taking of land that was taken by adverse possession, occupant entitled to damages for interference of use of land but not for value of property since occupant did not have title to property (Winchester v. City of Stevens Point)

  • Adverse Possession of Government Property

    • Statute of limitations for adverse possession of government property held in private is longer = 40 yrs instead of 20 yrs.

    • Adverse of possession of government land held in the public trust, e.g. forests or parks, will not give one title  probably get $ damages

  • Rights of adverse possessor:

    • Can still lay claim to title of land through adverse possession even if did not meet time requirement = even a person without good paper title or mature ownership by adverse possession may bring suit against someone who tries to forcibly eject him  mere possession gives right to sue

    • Only legitimate title holder who has real deed can eject adverse occupant


Cases

    • Belotti v. Bickhardt (1920) – Hotel has been built over the real property line of the parties and the deed describes the boundary as not including part of the hotel

          • Transfer of ownership was intended to include entire building

          • Adverse possession occurs  satisfies policy aim of settlement of land claims

          • Actual use/exploitation of land is better evidence of title than a deed.

    • Tapscott v. Cobbs (1854) – Prior continuous possession under claim of right, even though not enough to give title by adverse possession, gives priority over trespasser

          • Stands for proposition that even a person who doesn’t have good paper title OR a mature ownership by adverse possession can sue by possession

          • Way of keeping peace and giving people security in what they posess

          • Exception = possessor doesn’t have the right to sue the true owner

    • Winchester v. City of Stevens Point (1883) – P said city damaged his property by building dike in front  to claim damages, P needs to prove he has a claim to property

          • Policy: don’t want to compensate twice if true owner claims damages too

    • Hinkley v. State (1922) – Property owner along Hudson river built pier, 100 years later State wants to condemn the pier to improve navigation but says they own the property already and don’t have to pay compensation

          • One cannot acquire title from the state by adverse possession, at least in connection to public property compared to private property

          • Can’t expect government to always monitor their property

B. Nuisance
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