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Killer PropertySpring 2009
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.
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)
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
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
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
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