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  • 8/2/2019 Killer Property



    Killer PropertySpring 2009


    Section 1

    Adverse Possession

    Case Facts Issue Rule(s) Analysis Policy

    Van Valkenburg v.Lutz(judgment for VV)

    CB at 115Aspen at 13

    Lutz and his family owned andoccupied a parcel of land near atriangular tract in the City ofYonkers. Beginning around1920, Lutz (D) used the tract tocross to his land. He thencleared part of the tract andbuilt a shed thereon andmaintained a garden, withknowledge that he did not have

    title to the tract. In 1937, VV(P) moved onto a parcelcontiguous to the triangulartract and a feud developedbetween the parties. In 1947,VV purchased the triangulartract at a tax sale and gave Lutznotice to vacate the tract at ameeting between the partiesand counsel. Lutz agreed toremove the shed and garden,but claimed a prescriptiveeasement for the right of way.Lutz obtained a judgment tothat effect in Jan. 1948. VV

    brought this action to compelremoval of encroachments anddelivery of possession of thetriangular tract.

    Elements of



    To acquire title to realproperty by adversepossession not foundedupon a writteninstrument, it must beshown that there wasactual occupation underclaim of title Theessential elements ofproof being that the

    premises:(1) are protected by asubstantial enclosure,or(2) are usuallycultivated andimproved.

    N.Y. Civil Practice Act 40(old statute)

    1.usually cultivated and improvedWHY FAILED?-whole parcel was not cultivated(cultivation of a smaller part of the largepart insufficient no constructive APwhere claim is not under color of title

    -Lutz actions on property (garageencroachment, small shed/shack,portable chicken coop, cutting of some

    brush, storage of junk) insufficient to

    Punish the original owner for failure to

    police real property (sleeping on rights)

    Encourage commercialdevelopment

    o Probably has noresonance now (maybeat the early foundationsof the doctrine)

    o Market governsefficiency, not the law

    o Also, adverse possessionwill not lead a rationalactor to invest indevelopment on thegrounds of adversepossession

    Detrimental Reliance on PropertyOwnership by Adverse Possession

    Equitable relief provides personswho invest and develop land, makeimprovements, etc. the security ofproperty ownership

    Judicial Certainty

    Availability of evidence, managingparties to potential litigation

    Preventing Unjust Enrichment of Original

    Owner (where AP has made improvementsor kept land cultivated.

    Security in Title at the earliest possiblemoment.

    See Note on the Logistics ofProperty Transfer and Record

    2. claim of title-requires adverse possessor to holdproperty hostile to legal title.-Lutz acknowledged legal title in the VV inthe easement proceedings

    Why requirement of cultivation and

    improvement requirement?

    Notice to original owner of adversepossessory interest.

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    Case Facts Issue(s) Rule(s) Analysis PolicyManillo v. Gorski

    CB at 130Aspen at 14

    Gorski (D) entered intopossession of a lot in 1946under an agreement topurchase. Land was actuallyconveyed to D in April 1952. Pare the owners of an adjacentlot, acquired in 1953. In 1946, Dmade certain structuralimprovements whichencroached on Ps property by15 inches.

    Boundary Dispute/MistakeEffect ofmistaken belief ofownership on the element ofclaim of right

    Two Approaches:1. MaineDoctrine/Aggressive

    trespass standardRULE

    Claim of right requiresbad faith acquisition. AP mustintend to claim possessionwith knowledge that he doesnot have the right topossession.2. CT Doctrine/Good FaithstandardRULEState of mind isirrelevant. Only requiresactual occupation withoutpermission.

    Minor EncroachmentWhether minor encroachment issufficiently open and notorious toput true owner on notice of AP?

    RULENo presumption ofnotice/knowledge arises froma minor encroachmentalong acommon boundary

    Howard v. Kunto

    CB at136Aspen at 15

    The Kuntos took possession ofa summer home under a deedwhich unbeknownst to themdescribed the adjoiningproperty. After discovering themistake, the Howards obtaineda conveyance of the deed whichdescribed the property occupiedby the Kuntos. Howard then

    sought and obtained judgment

    Seasonal OccupationIs a claim of adverse possessiondefeated because the physical useof the premises is restricted tosummer occupancy?

    TackingCan an occupant who has title totract A under the mistaken beliefthat he has title to tract B and whooccupies tract B, tack the periods of

    More on actual entry giving exclusive possession CB at 124 n.2

    RULEThe sort of entry and exclusive possession that will ripen into title byadverse possession is use of the property in the manner that an average true ownerwould use it under the circumstances, such that neighbors and other observerswould regard the occupant as a person exercising exclusive dominion . CB at 125para. 1

    NOTE Ewing v. Burnet where adverse possession of an unimproved lot in Cincinnatiwas established where claimant paid taxes on the lot, from time to time dug sad andgravel from it, permitted others to do so, and brought trespass actions others fordigging without his permission (but kept no actual residence on the property)

    More on open and notorious

    ISSUE: Underground parcels possession of cave notorious?Suppose that A and B are neighbors whose parcels of land lie over a cave, theentrance to which is on As land. A discovers the entrance, explores, and opensit up to the public for a fee. As business, well known to B, runs for many years.B discovers, after the SOL has expired, that part of the cave is under his land andbrings suit to quiet to title to that part of the cave. A claims adverse possession.

    What result?Marengo Cave Co. v. Ross held that open possession of undergroundcave not notorious.--Dan Tarlock, Bill of Particulars, IU School of Law--. Coase Theorem suggeststhat result is irrelevantbecause A will buy out Bs interest to keep business. --Stewart Sterk counters with bilateral monopoly (inefficient wealth transfer)

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    quieting title in himself. possession of tract B by hispredecessors who also had recordtitle to tract A?

    Adverse Possession in New York State

    Case Law Current Statute (as amended 2008) Affect on Case Law

    Van Valkenburg v. Lutz

    See FACTS above

    501 Adverse Possession Defined3. Claim of right. A claim of right means a reasonable basis for the beliefthat the property belongs to the adverse possessor or property owner,

    as the case may be. Claim of right not required where owners cannot beascertained in the relevant workers.

    511 AP under written instrument

    and there has been a continued occupation and possession of the premisesincluded in the instrument, or some part thereof, for ten years under thesame claim, the premises so included are deemed to have been heldadversely. constructive adverse possession

    512 Essentials of AP under written instrument

    For the purposes of constituting an adverse possession, founded upo n awritten instrument or judgment or decree, land is deemed to have beenpossessed and occupied in any of the following cases:

    1. Where there has been acts sufficiently open to put a reasonablydiligent owner on notice; or2. Where it has been protected by a substantial enclosure; or3. Where, although not enclosed, it has been used for the ordinary use

    of the occupant.Where a known farm or single lot has been partly improved, the portion ofthe farm or lot that has been left not cleared or not enclosed, according to theusual custom of the adjoining country, is deemed to have been occupied forthe same length of time as the part improved or cultivated.

    521 AP not under written instrument

    Where there has been an actual continued occupation of premises under aclaim of right the premises actually occupied, and no others, are deemedto have been held adversely. no constructive AP

    522 Essentials of AP not under written instrumentFor the purposes of constituting an adverse possession, founded upo n awritten instrument or judgment or decree, land is deemed to have beenpossessed and occupied in any of the following cases:

    1. Where there has been acts sufficiently open to put a reasonablydiligent owner on notice; or

    2. Where it has been protected by a substantial enclosure

    543 AP; how affected by acts across boundary lines

    1. Notwithstanding any other provision of this article, the existence ofdeminimus non-structural encroachments including, but not limited to,fences, hedges, shrubbery, plantings, sheds and non-structural walls,

    shall be deemed to be permissive and non-adverse.2. Notwithstanding any other provision of this article, the acts of lawnmowing or similar maintenance across the boundary line of anadjoining landowners property shall deemed permissive and non-adverse.

    1. Knowledge precluded claim of rightLegislative history suggests that inquiry not upon the person'sbelief, but instead upon the evidence introduced in court which

    justifies a reasonable basis for that belief. It will be an inquiryinto the basis and whether it was reasonable, not into a person'smind. The court will determine whether or not there was areasonable basis.

    oThere doesnt seem to evidence to support to provide areasonable basis for belief that Lutz owned to land

    2. Cultivation/ImprovementStatute replaces the requirement for usual cultivation orimprovement with common law open and notorious sufficientto put owner on notice (which cuts in favor of Lutz, everyoneknew it was Lutzs Garden; butVV may argue that this