Property Week 2 Reading (70-103)
Powell on Real Property
1. Every American jurisdiction has one or more statutes of limitations that fix the period of time
beyond which the owner of land can no longer bring an action, or undertake self-help, for the
recovery of land from another person in possession. The law of adverse possession is a type of
statute that may be sufficient to cause the statutory period to begin to run against the true
owner.
a. Adverse possession functions as a method of transferring interests in land without the
consent of the prior owner, and even in spite of the dissent of such owners. It rests
upon social judgments that there should be a restricted duration for the assertion of
“aging claims” and that the passage of a reasonable time period should assure security
to a person claiming to be an owner.
b. The theory upon which adverse possession rests is that the adverse possessor may
acquire title at such time as an action in ejectment (or other action for possession of
real property) by the record owner would be barred by the statute of limitations.
Henry w. Ballantine, Title by Adverse Possession
1. The statute “of limitations” has not for its object to reward the diligent trespasser for his wrong
nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great
purpose is automatically to quiet all titles which are openly consistently asserted, to provide
proof of meritorious titles, and correct errors in conveyancing.
Oliver Wendell Holmes, The Path of the Law
1. Statute of limitations; what is the justification for depriving a man of his rights, a pure evil as far
as it goes, in consequence of the lapse of time?
a. Suggests that the foundation of the acquisition of rights by lapse of time is to be looked
for in the position of the person who gains them, not in that of the loser.
b. Holmes is suggesting an economic explanation, base on diminishing marginal utility of
income
Notes and Questions
1. Adverse possession requires that there be (1) an entry that is actual and exclusive, (2) open and
notorious, (3) continuous for the statutory period, and (4) adverse and under a claim of right
Van Valkenburgh v. Lutz
Statement of Facts: The Lutz family (defendant) bought Lots 14 and 15 in Yonkers in 1912. Between then and
1947, they accessed their property by cutting across Lots 19-22 (collectively, Lot 19). Over time, Lutz built a
structure and started a gardening business on Lot 19, which he knew that he did not own. In 1947, the Van
Valkenburgh family, with whom the Lutzes did not get along, purchased Lots 19-22 and demanded that Lutz
remove his structures and garden from Lot 19. Lutz agreed to do so, but claimed that his family should be
permitted continuing use of the path through Lot 19 to access his property. He then removed some of the
structures from the land. Van Valkenburgh erected a fence blocking the path that Lutz had claimed a right to
use. Lutz sued Van Valkenburgh, arguing that while Van Valkenburgh owned the land, he (Lutz) had
established a right of way through it. The court ruled in Lutz’s favor, holding that Lutz had the right to use the
path. The court of appeals affirmed. Van Valkenburgh later sued Lutz, complaining that the remainder of Lutz’s
structures (a garage and a shed) infringed upon his land. Lutz generally denied the allegations, and additionally
filed a counterclaim asserting that he owned the land claimed by Van Valkenburgh by virtue of having
adversely possessed it for more than thirty years. The trial judge agreed with Lutz and held that Lutz had
acquired title to the land by adverse possession. The intermediate appeals court affirmed, and Van
Valkenburgh appealed.
Issue: May a person claim adverse possession of real property that he knows he does not own by using and
erecting structures on the property?
Rule: A party takes adverse possession of a property owned by another when he takes actual possession of it,
encloses it and/or makes improvements to it, for statutory period of years.
Analysis/Conclusion: No. In order to establish adverse possession in New York, the claimant must occupy the
land “under claim of title” for fifteen years. Lutz admitted that he knew that he did own the land on which he
built a small shed. He also admitted that, having not taken a survey of the land, he thought that the garage he
built was actually on his land. The circumstances were not enough to hold that Lutz did anything to the land
“under claim of title,” which the court defined to mean “hostile” to its true owners. Additionally, Lutz had
asserted in previous litigation that Van Valkenburgh in fact owned the property, and secured a judgment in his
favor based in part on that assertion; he cannot in subsequent litigation disavow that admission. The judgment
of the trial court is reversed, and Lutz’s counterclaim is dismissed. The trial court must enter judgment in Van
Valkenburgh’s favor subject to the previously established right of way.
Justice Fuld Dissent: Between 1916 and 1948, Lutz worked the disputed land as a farm; the neighbors
considered the land to be the property of the Lutzes; and no one else had ever asserted title to the land prior
to Van Valkenburgh. This evidence should make clear that Lutz intended to claim the land as his own, thus
acting “under claim of title.” The fact that Lutz knew he did not own the land is irrelevant because, despite that
knowledge, he took steps to exert control over the property as his own. Lutz’s assertion in the earlier litigation
that Van Valkenburgh “owned” the land is irrelevant because Lutz’s title in the land had vested well before
then, and it cannot be disclaimed without following legal formalities.
Mannillo v. Gorski
Procedural History:
1. Plaintiffs filed a complaint in the Chancery Division seeking a mandatory and prohibitory injunction
against an alleged trespass upon their lands.
2. Defendant counterclaimed for a declaratory judgment which would adjudicate that she has gained
title to the disputed premises by adverse possession under N.J.S. 2A: 14-6, N.J.S.A, which provides;
Every person having any right or title of entry into real estate shall make such entry within 20 years
next after the accrual of such right or title of entry, or be barred therefrom thereafter.
3. After plenary trial, judgment entered for Plaintiffs.
4. Defendant appealed to Appellate Division. Before argument there, this Court granted defendant’s
motion for certification.
5. TCT concluded that defendant had clearly and convincingly proved that her possession of the 15inch encroachment had existed for more than 20 years before the institution of this suit and that
such possession was “exclusive, continuous, uninterrupted, visible, notorious, and against the right
and interest of the true owner.”
Statement of Facts:
1. Gorski (defendant) and the Mannillos (plaintiffs) were landowners with property adjacent to each other.
Prior to the Mannillos’ acquisition of their land, Gorski installed a set of steps leading to a side entrance of
her home. These steps encroached by 15 inches upon the lot that the Mannillos later purchased. Upon
discovering this encroachment, the Mannillos brought suit for an injunction. The trial court determined
that even though her possession was “exclusive, continuous, uninterrupted, visible, notorious and against
the right and interest of the true owner" for more than twenty years, Gorski did not acquire the fifteen
inches by adverse possession, because Gorski did not possess the hostile intent required by New Jersey
law. The court granted the Mannillos an injunction. Gorski petitioned for certification to the Supreme
Court of New Jersey.
Issue:
1. Whether an entry and continuance of possession under the mistaken belief that the possessor has
title to the lands involved, exhibits the requisite hostile possession to sustain the obtaining of title
by adverse possession?
2. Do defendant’s acts meet the necessary standard of “open and notorious” possession?
Rule:
1. No presumption of knowledge arises from a minor encroachment along a common boundary. In
such a case, only where the true owner has actual knowledge thereof may ti be said that the
possession is open and notorious.
2. A claim of adverse possession may be based on a mistaken possession, but it must also be visible enough
to put the owner on notice.
Analysis:
1. Plaintiffs assert contra wise that defendant did not obtain title by adverse possession as her
possession was not of the requisite hostile nature.
a. They assert that, as defendant’s encroachment was not accompanied by an intention to
invade plaintiffs’ rights in the land, but rather by the mistaken belief that she owned the
land, and that therefore an essential requisite to establish title by adverse possession is
lacking.
2. Preble case
a. The intention to claim title to the extent of the occupancy must appear to be absolute, and
not conditional; otherwise the possession will not be deemed adverse to the true owner. It
must be an intention to claim title to all land within a certain boundary on the face of the
earth, whether it shall eventually be found to be the correct one or not.
3. French v. Pearce
a. Into the adverse claimant’s mind, his motives or purposes, his guilt or innocence, no enquiry
is made. The very nature of the act (entry and possession) is an assertion of his own title,
and the denial of the title of all others. It matters not that the possessor was mistaken, and
had he been better informed, would not have entered on the land.
4. Whether or not the entry is caused by mistake or intent, the same result eventuates – the true
owner is ousted from possession. In either event his neglect to seek recovery of possession, within
the requisite time, is in all probability the result of a lack of knowledge that he is being deprived of
possession of lands to which he has title. Accordingly, we discard the requirement that the entry and
continued possession must be accompanied by a knowing intentional hostility and hold that any
entry and possession for the required time which his exclusive, continuous, uninterrupted, visible
and notorious, even though under mistake claim of title, is sufficient to support a claim of tittle by
adverse possession.
Conclusion:
1. Yes. A claim of adverse possession may be based on a mistaken possession, but it must also be visible
enough to put the owner on notice. The trial court was correct that Gorski’s possession was exclusive,
continuous, uninterrupted and against the right of the true owner. It was incorrect in concluding that,
because the possession was due to Gorski’s mistake, it lacked the necessary hostility, or that Gorski had
shown that her possession was visible and notorious. On the matter of mistaken possession, the Maine
doctrine requires an adverse possessor to deliberately take the property in question, which rewards a
person who takes property with premeditated hostility while penalizing someone who makes an honest
mistake. The alternative Connecticut doctrine does not inquire into the motives of the possessor. This is
the superior approach. It is time to eliminate the requirement that possession be openly hostile. Any entry
and possession for the required time that is exclusive, continuous, uninterrupted, visible, and notorious
may support a claim of adverse possession, even if it was the result of a mistake. On the other hand, to
give an owner the opportunity to bring a claim to recover adversely possessed property, the possession
must be visible and notorious, which means the owner must know about it. If an encroachment on a small
area is not immediately apparent, a court cannot presume that an owner has actual knowledge of it.
However, even if the possession is not sufficiently open to put the owner on notice, an innocent adverse
possessor might not be able to relinquish the property without great expense or difficulty. In that case, the
true owner might be required to turn over the land in exchange for fair market value. Here, there was
sufficient evidence to sustain Gorski’s claim of adverse possession except for the matter of whether it was
visible and notorious. Gorski’s encroachment onto Mannillo’s property was only 15 inches along a
common border, invisible to the naked eye, so Mannillo’s knowledge cannot be presumed. The case is
remanded to the trial court to determine whether Mannillo had actual knowledge of Gorski’s
encroachment and, if not, whether the Manillos should be required to convey the property to Gorski and
what consideration would be appropriate.
Howard v. Kunto
Procedural History:
1. Defendants appeal from a decree quieting title in the plaintiffs tract of land on the shore of Hood Canal in
Mason County.
Statement of Facts:
1. At least as long ago as 1932 the record tells us that one McCall resided in the house now occupied by the
appellant-defendants, Kunto. McCall had a deed that described a 50-foot wide parcel on the shore of
Hood Canal. The error that brings this case before us is that the 50 feet described in the deed is not the
same 500 feet upon which McCall’s house stood. Rather, the described land is an adjacent 50-foot lot
directly west of that upon which the house stood.
2. The Kuntos took possession of the disputed property under a deed from the Millers in 1959. In 1960,
respondent-plaintiffs, Howard, who held land east of that of the Kuntos, determined to convey an
undivided ½ interest in their land to the Yearlys.
3. In 1932, McCall had a house on some land. His record title erroneously described his tract to be the 50foot tract immediately to the west of his. This erroneous deed passed several times over the years,
including to Miller. Miller built a dock on the misdeeded property. In 1959, Miller conveyed the erroneous
deed to Kunto (defendant), who took possession of the mis-described plot of land. In 1960, Howard
(plaintiff) ordered a survey of the area and discovered that he and several of his neighbors were occupying
plots of land that were not the plots described in their respective deeds: Howard actually owned record
title to the land occupied by Moyer, and Moyer owned record title to land occupied by Kunto. Howard
and Moyer conveyed their record deeds to each other, which resulted in Howard holding record title to
the land occupied by Kunto. Howard then brought suit to quiet title on the land occupied by Kunto (record
owned by Howard) in Howard. Before this time, no one had ever challenged the ownership of the land
that Kunto occupied. The trial court held that Kunto, having occupied the property for less than a year,
had not satisfied the requirements for adverse possession, and thus the land belonged to Howard. Kunto
appealed.
Issue:
1. What happens when the descriptions in deeds do not fit the land the deed holders are occupying?
2. (1) Does using property as a summer home constitute uninterrupted use for purposes of adverse
possession? (2) May a previous owner’s time occupying a property count toward the statutory period so
as to constitute adverse possession?
Rule:
1. Adverse possession occurs when a person takes actual possession of property that is uninterrupted, open
and notorious, hostile and exclusive, under a claim of right for a statutorily specified period of time.
Analysis/Conclusion:
1. (1) Yes. For adverse possession purposes, possession is sufficient when the property is used in a manner
that is ordinary and natural given the nature of the property. Here, the property is a summer home, so
living on the property year-round was not required to establish adverse possession. (2) Yes. In meeting the
time period requirement for adverse possession, successive owners of a property may add their
occupancy times together where they share privity in the ownership interest. Because each purchaser in
this case believed himself to have the appropriate record title to the plot of land that he occupied, their
common erroneous belief is sufficient to establish privity between them all such that their collective
period of occupation satisfies the adverse possession statute. The trial court’s judgment granting title in
the land to Howard is reversed, and title is granted to Kunto through adverse possession.