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# Session 02

> Found Property and Adverse Possession

## I. Found Property: Lost, Mislaid, and Abandoned Property

### A. General Framework

* When finding property, must characterize it as **lost**, **mislaid**, or **abandoned**
* This characterization determines who has superior rights to the property
* Common exam issue worth approximately 10 points (usually final interrogatory)
* **Not tested on the bar exam** (according to professor's experience)

### B. Lost Property

**Definition**: Property that was **unintentionally** placed somewhere; owner did not intend to place it there

**Key Rule - Finder's Rights**: The **finder of property is able to keep it against all but the rightful owner**

**General Rule for Lost Property**: Lost property goes to the **landowner** (not the finder)

* **Rationale**: The true owner is likely to return to the landowner/occupier to claim their lost property

#### **Case: *Armory v. Delamirie*** (also spelled Dela Marie/Dela Merie)

* **Facts**: Chimney sweep's boy (minor) found a jewel/ring in a chimney; took it to goldsmith to identify; goldsmith refused to return it
* **Holding**: The boy (finder) prevails over the goldsmith
* **Rule Applied**: Finder of property can keep it against all but the rightful owner
* **Professor's Criticism**: Unclear why property didn't go to landowner; case leaves open why the jewel wouldn't go to the person whose chimney it was found in
* **Characterization**: The jewel was characterized as **lost** (unintentionally placed in chimney - hard to imagine intentionally placing jewelry inside a chimney)

#### **Case: *Hannah v. Peel***

* **Facts**:
  * Major Peel was granted ownership of house but **never lived there** or occupied it
  * In 1940, house was requisitioned for quartering soldiers
  * Hannah (plaintiff/soldier) found a brooch on a windowsill
  * Brooch was covered in dust, dirt, and cobwebs (indicating it had been there a long time)
  * Hannah reported brooch to police, who held it for 2 years
  * When owner wasn't found, police gave brooch to Peel
  * Hannah sued for return of brooch

* **Holding**: The finder (Hannah) gets the brooch, not the landowner (Peel)

* **Court's Characterization**: The brooch was characterized as **lost property**
  * **Professor's Criticism**: Disagrees with this characterization - if something is on a windowsill, it suggests **intentional placement** (mislaid), not lost property

* **Rule - Exception to General Rule**: When the **landowner has never occupied or been on the property**, lost property goes to the **finder**, not the landowner
  * **Rationale**: If landowner has never been there, the true owner cannot return to the landowner to reclaim the property (landowner wouldn't know about it)
  * Policy consideration: Incentivizes honest citizens to turn property in

* **Additional Rule from Opinion**: "A man possesses everything which is attached or under his land, but a man does not necessarily possess a thing which is lying unattached on the surface of his land, even though the thing is possessed by someone else"

* **Finder's Title**: Finder has **absolute title except against the true owner**

### C. Mislaid Property

**Definition**: Property that was **intentionally placed** somewhere with intent to retrieve it later; owner intended to place it there

**General Rule for Mislaid Property**: Mislaid property goes to the **landowner/occupier** (not the finder)

* **Rationale**: The true owner will return to the location where they intentionally placed the item

#### **Case: *McAvoy v. Medina*** (barber shop case)

* **Facts**:
  * Customer in barbershop found a pocketbook/wallet on a table
  * Handed it to the barber to find the owner
  * Owner never claimed it
  * Customer demanded it back three times; barber refused

* **Characterization**: The pocketbook was **mislaid property**
  * Item was on a table, which evidences **intentional placement**
  * Owner likely placed it there intending to pick it up later

* **Holding**: Property goes to the **barber (landowner)**, not the customer (finder)
  * True owner will return to barbershop asking if they found the pocketbook

### D. Abandoned Property

**Definition**: Property to which the **true owner has voluntarily relinquished all claim of ownership**

**Rule**: Finder generally gets abandoned property

**Key Requirement**: Must show owner **intentionally and voluntarily gave up** their interest in the property

* Examples of evidence of abandonment:
  * Property left next to garbage
  * Sign saying "please take this mattress"
  * Context suggesting owner no longer wanted the property

**Difficulty in Proving Abandonment**: Hard to establish that unknown owner voluntarily relinquished their rights

### E. Important Limitations and Principles

1. **Finder Must Be Lawful Visitor (Not Trespasser)**
   * Law does **not reward trespassers**
   * Finder must be an **invitee or have permission** to be on the property
   * Examples of lawful finders: customers, workers/contractors performing their duties

2. **Public Property**
   * If property found on public land (park, sidewalk, etc.), it's "fair game"
   * No landowner to claim superior rights
   * May have duty to turn in to law enforcement (beyond scope of class)

3. **Reasonable Inspection Standard**
   * For determining if true owner should have discovered the item
   * Cannot claim deliberate ignorance or willful blindness
   * Living in Tokyo while owning land in Arkansas doesn't excuse failure to inspect

4. **Conversion/Trespass to Chattels**
   * Taking property that isn't abandoned and converting it may constitute a **tort** (trespass to chattels or conversion)

### F. Exam Tips

* **Throw-in issue** worth approximately 10 points on exams
* Can argue multiple characterizations if facts support it - won't lose points for discussing additional possibilities
* Focus on the **characterization** (lost vs. mislaid vs. abandoned) - less important who ultimately gets it
* Look at the **physical state** and **location** of the property
* Don't insert lots of "what-ifs" - focus on facts as presented

## II. Adverse Possession

### A. Introduction and Policy

**Definition**: Possessing property **adverse to the true owner**; a form of trespass that can lead to ownership

**Key Policy Rationale**:

* **NOT to reward trespassers**
* Rather, to **punish true owners who sleep on their rights**
* Government wants property to be used and occupied
* **Economic rationale**: Occupied property generates more property tax revenue; owners maintain and develop property, increasing value and tax base

**Bar/Exam Testing**:

* Very commonly tested on bar exam (approximately every 6 years)
* At least 1-2 multiple choice questions
* Appears on essays about once every 6 years
* **Never had a final exam without adverse possession**
* Students often get overconfident and "fall on their face" on finals

### B. Basic Concept

**Core Principle**: Someone (individual, group, or entity) **trespasses** onto someone else's land and occupies it for a **period of time** without consent

**Key Points**:

* Does **not** require intent to invade - can be **accidental**
  * Example: Neighbor accidentally builds fence 3.5 feet onto your property
* Must be someone with **title to the property** being adversely possessed (not unclaimed land)
* If you permit someone to be on your property, it's **not trespass** and cannot be adverse possession
* There must be **physical invasion** of the property (cannot adversely possess by just looking at property)

### C. Elements of Adverse Possession

To succeed in adverse possession claim, must prove **ALL** of the following elements:

#### 1. **Actual Occupancy/Possession**

**Definition**: Must be **physical occupation** of the property

**Requirements**:

* Cannot just look at property and claim it
* Must make **use of the property** as a reasonable owner would
* Examples: Growing crops, farming, improving house, building structures
* Cannot just have water balloon fights and leave - must be substantial use

**Limitation - Can Only Claim What You Occupy**:

* Adverse possessor can **only claim the portion actually occupied/used**
* If only using part of Black Acre, can only claim that part
* Example: If occupying outhouse, can only claim the outhouse, not the whole estate

##### **Sub-Issue: Constructive Possession**

Allows adverse possessor to claim **entire parcel** even though only physically occupying **part** of it

**Two Requirements for Constructive Possession**:

1. **Color of Title**: Adverse possessor accepted some type of **defective deed** or instrument **purporting to convey title to the entire parcel**
   * Deed must purport to convey ALL of Black Acre
   * Deed is ineffective/defective (fraudulent, forged, etc.)
   * Adverse possessor's knowledge of defect is irrelevant

2. **Occupy at Least Some Part of the Land**: Must actually physically occupy **some portion** of the property (even just a yard is sufficient)

**Result**: If both requirements met, adverse possessor can claim **constructive possession of entire parcel**

**If No Constructive Possession**: Can only claim that portion actually occupied

**Minority Jurisdiction Note**: Some minority jurisdictions require adverse possession to succeed **only** through constructive possession

#### 2. **Open and Notorious**

**Definition**: The adverse possessor's occupancy must be **visible upon reasonable inspection**

**Test**: Would a **reasonable inspection** of the property reveal adverse occupancy?

**Key Principles**:

* Not about what the owner personally saw
* Must be what a **reasonable inspection would reveal**
* Owner cannot claim deliberate ignorance or willful blindness
* Example: Growing marijuana plants on 20x20 feet of a 2-acre parcel would be noticeable on reasonable inspection
* Cannot be underground or otherwise hidden

**Exam Tip**: Is the trespasser's occupancy noticeable/visible?

#### 3. **Hostile**

**Definition**: Adverse possessor did **not have permission** from the true owner

**Core Principle**: If occupancy is **permissive**, person is not a trespasser

**Important**: "Hostile" does NOT mean animosity or ill will - just means **without permission**

##### **Minority vs. Majority Approaches to Hostile**:

**Minority View (Good Faith Requirement)**:

* Requires adverse possessor have **good faith belief** that they are the rightful owner
* Does not want to appear to reward ill-willed trespassers
* Look for facts showing: thought property was abandoned, received from fraudster, discovered property, etc.

**Majority View**:

* **State of mind of trespasser is NOT relevant**
* Doesn't matter if adverse possessor:
  * Knew they were trespassing and wanted to take the land, OR
  * Thought it was their land and made innocent mistake
* Who cares about intent

##### **Scope of Permission Issue**:

Even if permission given, can become hostile if **exceeds scope of consent**

**Example**:

* Neighbor gives permission to "use my backyard"
* You host Billy Idol concerts for thousands of people every weekend
* Was hosting massive concerts **contemplated** in the permission?
* Likely **NO** - exceeds scope of permission, becomes **hostile**

**Analogy**: Plumber given permission to enter home to fix pipes cannot go through underwear drawer - exceeds scope

#### 4. **Exclusive**

**Definition**: The true owner is **not sharing** the property with the adverse possessor

**Principle**:

* Cannot be shared between true owner and adverse possessor
* Strange for both to be using land simultaneously if one is a "trespasser"

**Important Clarification**:

* Means the **portion being actually occupied** is not shared
* True owner could be living in different part of overall property (e.g., Romanian-style house on other corner)

#### 5. **Continuous**

**Definition**: The occupancy is **not interrupted**; it is constant and unbroken

**Look For**:

* Has occupancy been **interrupted**?
* Is it **constant**?
* Did adverse possessor **abandon** the property?
* Was occupancy only **temporary**?

**Examples**:

* Building a house = constant occupation (unless clearly abandoning it)
* Moving to Romania "forever" and leaving = likely interruption
* **Vacation**: Going overseas for 9 months may NOT be interruption (can go on vacation without abandoning)

**Exam Warning**: Professor will "absolutely destroy you on this" - students often get overconfident and miss issues

**Key Question**: Look for any interruption in the occupancy

#### 6. **For the Statutory Period (Term of Years)**

**Modern Law**: Must satisfy all elements for the **statutory period** set by jurisdiction

* Examples: 3 years, 5 years, 10 years, 15 years, 20 years, 30 years
* Statute of limitations period for trespass

**Common Law Default**: **20 years** (if no statute specified)

**On Exams**:

* Fact pattern may state: "This jurisdiction has a statute of limitations period for trespass of 5 years"
* Professor often makes it 10 years
* Sometimes **no statute given** - do your best; some students say defaults to common law

**Timing Matters**:

* Must calculate precisely (month and day matter, not just year)
* Example: Adverse possessor entered in 2015; it's now 2025; 10-year statute = time period satisfied

##### **Sub-Issue: Disability**

**Definition**: Certain disabilities of the **true owner** (NOT adverse possessor) **pause the clock** on the statutory period

**Critical Timing Rule**: Disability must exist **at the time the adverse possessor went into possession**

* If no disability at time of entry, doesn't matter if disability arises later
* Clock does NOT pause for disabilities arising after entry

**Three Types of Disability**:

**a) Minor**

* If true owner is a **minor** (under 18) at time adverse possessor enters
* Clock **paused until minor reaches age of majority (18)**
* **Example**: Owner is 17 when adverse possessor enters; 10-year statute
  * Clock starts when owner turns 18
  * Total time = 11 years (1 year pause + 10 year statute)
* Alternative end to disability: Property conveyed to someone else

**b) Incarceration**

* If true owner is **incarcerated** at time of entry
* **Rationale**: Cannot object while incarcerated
* Clock paused until person is **released** or **transfers property** to someone else
* **If incarcerated for life**: Clock paused indefinitely (for purposes of this class)

**c) Insanity (Unsound Mind)**

* If true owner is **insane/of unsound mind** at time of entry
* **Rationale**: Person lacks capacity to object
* **Definition of Insanity**: Person does not have their faculties together to the point where they are **incapable of objecting**
  * Must be truly incapable of understanding/objecting
  * **NOT** mere depression, anxiety, or suicidal thoughts (debatable)
  * More extreme: "living in Zelda," thinking gun is banana, etc.
* Clock paused until person **regains sound mind** or property is transferred
* **If insane for life**: Clock paused indefinitely (for purposes of this class)

**Policy Tension with Permanent Disabilities**: Indefinite pause conflicts with policy of wanting land to be used (but beyond scope of class)

### D. Suggested Approach for Analysis

From professor's notes - questions to ask yourself (not mandated, but helpful):

1. Is there actual occupancy? If applicable, constructive possession?
2. Is the occupancy open and notorious?
3. Is the possession hostile?
4. Is it exclusive?
5. Is it continuous?
6. Has the statutory period (term of years) been satisfied?
7. Are there any disabilities?

### E. Exam Tips and Warnings

* **Don't overcomplicate it**: Just someone trespassing on land and being there for period of time
* **Students get overconfident** - then fail miserably on finals
* Not hard to grasp conceptually, but lots of nuances in application
* **It's what's not obvious** that earns points - not the clear/obvious stuff
* Professor "will whack you hard" if you're overconfident
* Pay special attention to **continuity** issues - easy to miss

## Next Session Preview

* Examples of disability calculations
* Review of adverse possession
* Cases on adverse possession from casebook
* Notes in casebook are "very important" for this topic
* Introduction to **Gift** (15 minutes planned)
* Will skip certain sections (public domain, etc.)
* Eventually moving to estates and future interests (professor's favorite part)