> ## Documentation Index
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# 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"

***

## 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

***

## 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**

***

## 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.

***

## 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"

***

## 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)

***

## 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

***

## 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**

***

## 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

***

## 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

***

## 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

***

## 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

***

## 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

***

## 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