2.7 Class Notes PDF

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Sukhatme Property Lecture Notes...

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1. Continued discussion of adverse possession 2. Recap a. Elements of adverse possession i. Actual entry 1. Promotes utilitarian objective ii. Exclusive possession 1. You can’t share it with true owner 2. Questions about this in Fulkerson. Hat’s the standard? Good faith, aggressive trespass? Etc. By acknowledging that Fulkerson owned the land, he was tacitly “sharing” it with him. iii. Open and notorious 1. It would be expected that the owner would know 2. You don’t want to incentivize people to “sneakily” take land; you want to promote utility and shift the land to someone who actually uses it. 3. Also relates to mistakes and deeds. This is a way to fix mistakes regarding the land boundaries. iv. Hostile and adverse possession 1. Three different states of mind a. Objective- state of mind is irrelevant. Conduct matters b. Good faith- you think you own it c. Aggressive trespass- you know you don’t own it, but intent to make it your own v. Continuous and uninterrupted 1. You have to inhabit the land as the owner would. 2. If the true owner comes in and interrupts the adverse possessor, it interrupts the time. 3. Adverse Possession a. Hollander v. World Mission church of Washington, D.C. i. Case of mistaken possession. Hollander thought the boundary of the land was down to a line of trees. In reality, she owned a smaller plot. ii. Why does Hollander lose? 1. The Church argues for the aggressive trespass standard. She actually thought it was her land. So she doesn’t have the necessary intent. So the “hostile and adverse possession” prong of the five-part test is not met. iii. What is Hollander’s arg? 1. Good faith! She maintained the land. She mowed and gardened it for 15 years. (Plus she could advance the objective standard. Her behavior indicates that she thought she owned it.) iv. So what does the court think? 1. They seem to not give weight to aggressive trespass standard. Because Hollander would have lost under this standard. So they implicitly reject the aggressive trespass standard. “Accordingly, we hold that the claimants possession was accompanied by the requisite adverse or

hostile intent…” So they are giving more weight to the Good faith theory or the objective theory (over the aggressive trespass theory of adverse or hostile intent). v. Do we agree with this outcome? 1. Sure! Loss aversion! The pain to her from taking away land that she thought was hers would be more meaningful/greater than the gain that the church would receive from getting the land, because of the principle of loss aversion or diminishing marginal returns. a. Plus it’s the status quo. Why interrupt this without a compelling reason to do so? The land has been this way for 15+ years! b. Howard v. Kunto i. Facts 1. There was an error in the survey. Each homeowner actually owned the plot of land 50 feet to the left of their house. So it would be like me owning my neighbor’s lot. 2. The people who were actually using the land (Kunto) were the ones who wound up getting the title. a. But the court has to discuss a few issues before they get here. i. The house was a summer home. Does this count as continuous and uninterrupted use of the land? 1. Court says yes! Because Howard would have used it as a summer home, and Kunto used it for that purpose. He used the purpose in the same way that the true owner would. If the true owner would use it in the summer, and Kunto used it in the summer, that’s sufficient. ii. Tacking. Can you use the previous owner’s use to get to the amount of time needed to establish adverse possession? (The Kunto’s bought the house from someone else. Can they tack on the time of the previous owner?) 1. For tacking to be okay, there needs to be a contractual relationship between the current owner and the previous owner. This happened in this case. The Kunto’s had a contract with the Morgans, who they bought the property from. a. Function of privity (contractual relationship) requirement (i.e. why do we care that there is privity?): i. Maybe protects contracts? (but this is more of an argument that it should be a sufficient, but not necessary condition for tacking.)

ii. Maybe provides more evidence that the possession was continuous and uninterrupted? iii. Seems like there’s no real justification. 2. Why allow tacking at all? a. Maybe promotes utilitarianism. Well, we don’t care who is using the land now, we just care that SOMEONE is using it for a good purpose. c. Limits on adverse possession right i. Disabilities (p. 150) 1. You might meet all of the elements of adverse possession, but if the owner has a disability, the SOL might be “tolled” and you might have a longer time to bring an action for ejectment. 2. Problems (151) a. Problem 1: i. (a) Cause accrued in 1984. Adverse possession claim is ripe in 2005 (21 years). But the disability is removed in 2007. You get to add 10 years because of the statute. So the new date is 2017. ii. (b) The owner must have a disability at the time of the cause of action. Age is not material here because H wasn’t even born. So there’s no difference between (b) and (a). The SOL still runs until 2017, just like in A. 1. So in this case, the six year old had ten years (up until 2017) to bring the cause of action. Seems kind of ridiculous. His age at the time of the original trespass occurs, not his age now. a. You don’t “tack” disabilities. O was insane and B was a minor. You don’t tack those and get extra time. b. Problem 2: i. The statute is never tolled because there is no disability. [REVIEW LECTURE AT 2:12 for case.] d. O’Keefe i. Adverse Possession of Chattels ii. O’Keefe learned that three of her paintings were stolen from the gallery owned by her late husband. O’Keefe says that they were stolen, but from the facts we’re not sure. They end up 30 years later at a gallery in Princeton. O’Keefe wants her paintings back. It’s an action for replevin, which is an action to get back property that was wrongfully taken. iii. The person who has the paintings (Snyder) said that he inherited them from his father, who accrued them before alleged theft. There is a genuine issue of

material fact here! (To grant SJ, we need no genuine issue of material fact!!! So since there’s a material fact that’s disputed, we shouldn’t grant SJ! We should go to trial. The court confirms. They say it was wrong to grant SJ for O’Keefe, and then in dicta they lay out the law.) iv. They say that in the case of adverse possession for chattels, the traditional rule should not apply. Open and notorious rule- it’s hard to tell when something has been stolen! You can’t hide a house, but you can hide a painting. It’s unfair to apply this prong to chattel. SOL also tolls at a different time. It’s not the date that the property was stolen, but the date that the original owner should have reasonably known (or did know!) that the property was stolen. (this relates to the idea of property being more “hide-able” too, because she may have never realized it was stolen! Because property isn’t so obvious, its harder to know when its taken, and the open and notorious rule seems silly.) a. But maybe this rule incentivizes people to not be attentive about their property. The true owner can keep the clock from ever running by just not trying to keep track of their property. So does the discovery rule get it right? (Discovery rule seems antithetical to the idea of utility. If you’re not looking for the property, you’re not using it!) i. Costs of discovery rule for true owner- they have to prove that they were ii. Cost of purchaser- you could have this item that you bought ripped away from you at any time! iii. How do we balance these costs? 1. Put it on the least cost avoider. If its easier for O’Keefe to advertise that her paintings were stolen, put the onus on her; if it’s easier for the purchaser to get a provenance, put onus on him. v. Voidable title vs. void title (see footnote) 4. Possessory Estates a. Why does this old system still persist? i. Familiarity and legitimacy. Says, “hey, this system has been able to hold up despite a variety of changing circumstances and contexts. Why change it?” 1. Traditions sometimes exist for a reason. ii. Plus, lawyers might like this system because it is deliberately complex. Drives up their jobs. Keeps em in business if normal people can’t understand it. b. Changes over time c. Fee simple i. The most common estate and the broadest ii. Possessor has it forever. It comes with heritability (you can pass it along to others on your death) and alienability (you can get rid of it, transfer it) and divisibility. 1. Was property always alienable?

a. In Feudalism, you were tied to the land. Quia Emptores allowed property to be alienable. 2. If its heritable, even without a will the property will go to your family based on state rules. But if you have no heirs, it goes back to the state. It escheats to them. 3. It’s also divisible now! You can give it to numerous people. iii. How do you create a fee simple? 1. The specific language is to “A and his/her heirs”, but today fee simple is the default, so you can just say “to A” and fee simple is implied. a. Words of purchase- “to A” i. Identifies the grantee b. Words of limitation- “and his heirs” i. Identifies “what,” that is, the type of estate. ii. This component says this is a fee simple iv. Fee simple absolute 1. There are no limitations attached to it v. Problems (186) 1. A would have a life estate (“for life”- means that the property is A’s until his death. He doesn’t get to decide what happens to it after he dies.) (when it goes back to O its called a reversion.), B would have a fee simple. a. B has what in this case? He has a remainder, but in what estate does he have a remainder in? “to B forever” Does this create a fee simple? No! This is 1600. “to his heirs” isn’t included. B has a life estate! SO when B dies, O has a reversion in fee simple. The property goes back to him when B dies.) b. What if this took place in 2002? i. A has a life estate. B has a remainder in fee simple absolute. 2. a. Does B have an interest in Greenacre, reachable by B’s creditors? i. No. A has a fee simple. That’s all that’s created here. B is just waiting for A to die. A might not actually give the property to B. It’s alienable, A can give it to someone else. B isn’t sure to get it. Because B doesn’t have an interest, it’s not reachable by Bs creditors. b. Sell+trip? i. No! A has a fee simple. It’s alienable. She can sell it if she wants! d. Rules of Inheritance i. Line of inheritance 1. Spouse usually first in line.

2. Issue is your surviving children, grandchildren. (Not nieces, nephews). You go straight down the line. 3. Ancestors means parents or grandparents. 4. And then you go to collaterals. Your siblings, your nieces/nephews. Etc. 5. Lastly, escheat ii. Problems (186) 1. If “to A” only, A has feel simple absolute 2. If “to A and his heirs”, O has nothing. 3....