Session 03 Notes

Adverse Possession (Continued) & Chattels

Adverse Possession - Disability Rule

Basic Disability Rule

• Disability pauses the statute of limitations for adverse possession
• The disability must exist at the time the adverse possessor enters the property
• If the disability arises after the adverse possessor has entered, it does NOT pause the clock

Types of Disabilities

Three recognized disabilities (only need one):

1. Minor (under 18 years old)
2. Incarceration (imprisonment)
3. Insanity/Unsound Mind

Critical Timing Rule

EXAM TIP: The disability must exist at the time of entry. This is a frequently tested bar exam issue.

Example Hypo:

• AP occupies Blackacre in 2010
• Owner goes to prison in 2011 (after entry)
• Owner released in 2016
• 10-year statute of limitations
• Owner files lawsuit in 2024
• Result: AP wins because the disability (imprisonment) did not exist at the time of entry in 2010

Correct Example:

• Owner is a minor in 2013 (age 16)
• AP enters in 2013
• Owner turns 18 in 2015
• 10-year statute begins running in 2015 when disability ends
• AP could acquire title in 2025 (10 years from 2015)

Requirements for Insanity Disability

• Adjudication required: There must be some form of judicial or quasi-judicial finding
• Depression and suicidal ideation alone do not qualify without formal adjudication
• Must involve due process (court judgment, board decision, conservatorship, mental hospitalization)
• A physician’s diagnosis alone is insufficient

No Tacking of Disabilities

Important Rule: Disabilities cannot be “tacked” (combined sequentially)

Example:

• If a minor transfers property to someone who is in prison
• The clock starts ticking upon the transfer
• Cannot pause the clock for both disabilities in succession

Transfer of Property During Disability

• The statute of limitations begins running when there is a transfer of ownership, even if the new owner has a different disability
• Clock will not begin until the disability is gone OR there is a transfer in ownership

Proper Terminology for Exams

Avoid: “The clock starts ticking” or “the clock stops”

Better Phrasing:

• “The statute of limitations will begin to run”
• “The statute of limitations will not run against the true owner”
• “The time period will not run”
• “The statute of limitations period begins”

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Adverse Possession - Tacking

Definition

Tacking allows successive adverse possessors to combine their periods of possession to meet the statutory period.

Requirements for Tacking

Privity must exist between successive adverse possessors:

• Some formal connection or transaction between the parties
• Recognized legal instrument (deed, contract, will)
• Sale, gift, mortgage, or other transfer
• Cannot be mere abandonment followed by new occupancy

What Constitutes Privity

Sufficient:

• Sale with deed
• Gift (typically requires writing per Statute of Frauds)
• Will/inheritance
• Contract
• Any recognized legal instrument showing transfer

Insufficient:

• Abandonment followed by new possessor finding the property
• Saying “good luck” to someone taking over the property
• No formal transaction or instrument

Classic Tacking Example

Scenario:

• A builds swimming pool encroaching 3 feet on neighbor’s property
• A occupies for 5 years
• A sells property to B (with deed)
• B occupies for 5 years
• 10-year statute of limitations
• Result: A’s 5 years + B’s 5 years = 10 years (tacking allowed due to deed creating privity)

The “Good Luck” Hypo

Scenario:

• First adverse possessor growing apples, decides to leave
• Second person asks: “Can I have a go at this?”
• First person responds: “Good luck!” and leaves
• Issue: Is “good luck” sufficient to establish privity?
• Answer: Likely no - it’s a figure of speech, not a formal transfer, gift, or instrument

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Elements of Adverse Possession (Review)

Historical Context

• Common law statute of limitations: 20 years
• Modern trend: 3 to 30 years (typically 6-10 years)
• California: 3 or 5 years

Purpose of Adverse Possession

• NOT to reward trespassers
• To punish true owners for “sleeping on their rights”
• Encourages productive use of land
• Promotes certainty in land titles

Basic Elements

1. Actual entry/possession
2. Open and Notorious
3. Hostile (without permission)
4. Continuous for statutory period
5. Exclusive

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Case Law: Actual Entry

Van Valkenburgh v. Lutz (New York - Minority View)

Facts:

• Lutz family used triangular lot for 30+ years
• Built shed, grew vegetables, used as pathway
• No formal deed
• Van Valkenburgh purchased record title, sued for trespass

Issue: Did the Lutzes satisfy the “actual” entry requirement?

Holding: No - adverse possession claim failed

Minority Rule (New York):

• Land must be “sufficiently enclosed” or “usually cultivated or improved”
• Requires use comparable to how a reasonable owner would use the property under the circumstances

Court’s Analysis:

• Shed with miscellaneous items
• Vegetable garden (not robust)
• No fence or enclosure
• Just “miscellaneous activity”
• Not using land as a reasonable owner would

Comparison to Reasonable Ownership:

• Reasonable owner would likely: build structure, fence the property, maintain it consistently
• Lutz’s use: sporadic, no clear boundary markers, junk on property
• Hard to determine if someone actually residing there

EXAM TIP: This is a minority view. Most jurisdictions do not require enclosure.

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Case Law: Open and Notorious

Mannillo v. Gorski (New Jersey)

Facts:

• Steps installed that encroached 15 inches onto adjacent property
• Encroachment discovered only upon survey

Issue: Was 15-inch encroachment “open and notorious”?

Holding: No - too de minimis

Rule: Open and notorious requires that a reasonable true owner, upon reasonable inspection, would be able to recognize the adverse occupancy

Analysis - Size of Property Matters:

• Small urban lot: 15-inch encroachment likely noticeable
• Large rural property (60 acres): 15-inch encroachment unlikely to be visible
• Size of property is a relevant factor

Test: Would a typical person, upon reasonable inspection, recognize adverse occupancy?

• 15-inch encroachment didn’t “capture the eye”
• Average person wouldn’t recognize property line violation
• Too de minimis to raise notice

Garage Encroachment Example

Per page 84: “Garage encroachment extending a few inches over the boundary line fails to supply proof of occupation by improvement”

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Case Law: Hostile/State of Mind

Three Views on State of Mind

1. Majority View - State of Mind is Irrelevant

• Does NOT matter if possessor:
  • Thought they owned it (good faith mistake)
  • Knew it wasn’t theirs and intended to take it (bad faith)
• Only question: Did they have permission?
• If no permission → trespasser → hostile

2. Good Faith View (Connecticut Rule)

• Requires possessor honestly believed the land was theirs
• “I thought I owned it”

3. Aggressive Trespass View (Maine Doctrine)

• Requires possessor knew they didn’t own it but intended to make it theirs
• “I didn’t own it but intended to take it from you”

EXAM APPROACH:

• Use majority view as default
• State of mind is irrelevant
• Focus on whether possession was non-permissive

Mannillo v. Gorski (Continued - Good Faith Issue)

Facts: Gorskis claimed “we thought it was our property, we’re sorry”

New Jersey Requirement: Good faith belief

Most jurisdictions: Have abandoned this requirement (per page 97)

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Case Law: Continuous Possession

Howard v. Kunto (Washington)

Complex Facts (Think “Peace Sign”):

• Properties A, B, and C
• Everyone living on their adjacent neighbor’s property
• Everyone adversely possessing each other
• Deeds describe one parcel but occupying different parcel

Issues:

1. Continuous possession
2. Tacking

Continuous Possession - Seasonal Use Rule

Facts:

• Property used as vacation/ski home
• Occupied only 3 months per year (January - April)
• Owner in different location rest of year (Santa Monica)
• Year-round upkeep maintained (gardeners, etc.)

Issue: Can seasonal use satisfy “continuous” requirement?

Holding: Yes, if consistent with the character of the property

Rule: Continuity depends on the characteristic use of the property type

• Is it typically used as seasonal/vacation property?
• Is it commonly used for skiing, beach access, etc.?
• Does possessor use it consistently during the relevant season?

Analysis:

• Not abandonment if possessor returns each season
• Evidence of constant upkeep
• Use as reasonable owner would use seasonal property
• Mammoth ski cabin: seasonal use reasonable
• Lake Tahoe summer home: summer-only use reasonable

Distinguishing Abandonment:

• Constant upkeep = no abandonment
• Intent to return = continuous
• Seasonal pattern consistent with property type

Tacking in Howard v. Kunto

Facts: Multiple successive owners, each adversely possessing wrong parcel

Issue: Can successive adverse possessors combine their time periods?

Rule: Yes, if privity exists between them

Application:

• Deed ran between successive adverse possessors
• Deed = legally recognized instrument
• Establishes buyer-seller privity
• Allows tacking: A’s time + D’s time = statutory period

Formula: A (5 years) → sells to D → D (5 years) = 10 years total

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Adverse Possession of Chattels

Definition

Chattel: Personal property (not real property)

• Horses, jewelry, art, cars, phones, casebooks, cats, china, etc.
• Can be adversely possessed like land

Different from Land Theft

• Not designed for intentional thieves (“I’m taking your water” = theft)
• Designed for good faith recipients
• “I bought this legitimately, how was I supposed to know it was stolen?”

Special Timing Rule - Discovery Rule

Traditional Rule: Statute runs from time of dispossession

Problem: How is true owner supposed to find stolen/lost chattel?

Modern Approach: Clock depends on true owner’s efforts

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Case Law: O’Keeffe v. Snyder (Chattels)

Facts:

• Painting went missing
• Discovered years later in gallery/home
• True ownership disputed
• Unclear if stolen or lost

Issue: When does statute of limitations run on stolen chattels?

Rule: Statute of limitations pauses if true owner makes reasonable good faith efforts to locate the chattel

The Reasonable Efforts Test

Statute PAUSES if true owner:

• Reports to police
• Hires private investigator
• Contacts galleries/dealers
• Places advertisements
• Makes constant, ongoing efforts
• Acts diligently and reasonably

Statute RUNS if true owner:

• Sits back and does nothing
• Makes only minimal effort
• “Hopes it comes back one day”

Key Principle: Not a single effort, but a collection of efforts over time

Examples of Sufficient Efforts:

• Working with police + hiring private investigator + contacting galleries + advertisements = sufficient
• Just reporting to police alone = likely insufficient
• “I looked under a couple rocks at the beach” = clearly insufficient

Agency and Efforts

Question: Does delegating to police/private investigator count?

Answer:

• Private investigator = agent of owner → their efforts = your efforts
• Police alone = may not be enough
• Must consider what owner could do independently
• Contact other galleries, hire investigator, advertise, go door-to-door

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Gifts (Introduction)

Three Elements of a Valid Gift

1. Intent (present intent to transfer)
2. Delivery
3. Acceptance

Intent - Present vs. Future

Invalid (Future Intent):

• “One of these days, I want you to have this ring”
• Speaking of future, not present
• No present intent to divorce oneself from title

Valid (Present Intent):

• “I give you this ring now”
• “This is yours”
• Present transfer of ownership

Delivery - Three Types

1. Actual Delivery

• Physically handing over the item
• “Here’s the cell phone” (hands over phone)
• Easiest and most straightforward

2. Constructive Delivery

• Used when actual delivery is impractical or impossible
• Giving key to represent car
• Giving deed to represent land

Example:

• Can’t pick up car and put in suitcase
• Put key in box as 16th birthday gift
• Key represents the car

3. Symbolic Delivery

• Symbol represents the gift
• Similar to constructive delivery

When to Use Constructive/Symbolic:

• Actual delivery impractical
• Item too large (car, land)
• Item cannot be physically moved

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Engagement Ring Hypo

The Scenario

• Propose marriage: “Will you marry me?”
• Give ring
• Acceptance of ring
• Post on Instagram
• Subsequently break up

The Legal Question

Who keeps the ring?

Traditional Gift Analysis:

• Was it a gift? (Intent + Delivery + Acceptance)
• “It was a gift! You gave it to me!”

Conditional Gift Theory:

• Ring given contingent on marriage
• Statement attached: “Will you marry me?”
• Acceptance with understanding of walking down the aisle

Factors to Consider:

1. Who broke it off? (fault)
2. Who cheated? (fault)
3. Was ring a birthday gift? (could be unconditional gift)
4. Value of ring (possibly relevant)
5. Did parties marry? (condition fulfilled?)

Modern View (per casebook notes):

• Conditioned on party’s promise to legally marry
• If no marriage → ring returns to giver
• Unless giver explicitly said recipient could keep it
• Not a contract (special relationship exception)

Instagram Evidence: Extensive evidence of proposal on social media

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Study Tips & Exam Guidance

Adverse Possession Exam Tips

Recognition Trigger:

• Question asks: “Who owns Blackacre and why?”
• Typically second or third call of the question
• Historically appears on second call

Common Student Errors:

• Professor gets “very substandard responses”
• Students must be “very careful”
• It’s on the final - “Like, it’s there! It’s on your final!”

Key Issues to Spot:

• Disability timing (existed at entry?)
• Tacking (privity between successive possessors?)
• Seasonal use vs. continuous
• Open and notorious (size of property matters)
• Good faith vs. majority view on hostility

General Exam Warnings

Easy Exams = Danger:

• If exam feels easy, “you’re getting screwed”
• Never think “I just got an A in property”
• Easy exams are easy for everyone = higher standard
• One sentence can make difference of full letter grade

Hard Exams = Better:

• If exam crushes you, crushes everyone
• Standard is much lower
• These exams yield better grades

Practice Essays:

• Available in packet
• Can submit for review weeks 9-10
• Conditions:
  • Take your time
  • No spelling errors (use spell check)
  • Word document only (or handwritten PDF)
  • Cannot do now (too early)

Coming Attractions

Next Week:

• Continue with Gifts (one case)
• Acquisition by Creation (quick lecture)
• Begin Estates in Land (professor’s favorite)

Warning about Estates:

• “The awful part, the part that they hate the most”
• Students historically have difficult time
• “Another dimension for next 5-6 weeks”
• Will take “baby steps”
• Must keep up with material

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Key Takeaways

1. Disability must exist at time of entry - most important timing rule
2. No tacking of disabilities - cannot combine successive disabilities
3. Tacking requires privity - formal instrument/transaction between adverse possessors
4. State of mind irrelevant (majority view) - only matters if had permission
5. Seasonal use can be continuous - if consistent with property character
6. Open and notorious - property size matters for visibility
7. Chattels - reasonable efforts test - true owner must actively search
8. Gifts require intent, delivery, acceptance - delivery is usually the crux
9. Constructive delivery - when actual delivery impractical/impossible
10. Adverse possession punishes owners - for sleeping on their rights, not rewards trespassers

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Important Distinctions

Tacking vs. Disability

• Tacking: Combines time periods of successive adverse possessors
• Disability: Pauses the statute for incapable true owners
• Cannot tack disabilities together

Good Faith vs. Majority Rule

• Good Faith (minority): Must believe property is yours
• Majority: Intent irrelevant, just need non-permissive possession

Actual vs. Constructive Delivery

• Actual: When you can physically hand over the item
• Constructive: When actual delivery impractical (car, land, large items)
• Default to constructive only when actual is impossible/impractical

Continuous vs. Abandonment

• Continuous: Seasonal use if consistent with property type, constant upkeep, intent to return
• Abandonment: Leaving with no intent to return, no upkeep, breaking possession