Property

Chapter 2(B)
Adverse Possession
 Roadmap
• Adverse Possession
– Elements of AP
– TX AP Statute
– Fulkerson v. Van Buren
– Boundary Disputes
• Hollander v. World Mission Church
– Tacking
• Howard v. Kunto
– Disabilities
• Adverse possession and chattels
– O’Keeffe v. Snyder
 Elements of AP
1. Actual entry
2. Exclusive possession (not literal)
3. Open and notorious
– Objective standard – would actions of AP’er put reasonable owner on notice
– Same evidence that establishes actual entry often also established open and notorious element
4. Hostile = Adverse = without permission
5. Claim of right/claim of title = what is AP’er’s state of mind? Three possible standards:
– Good faith (subjective)
– Bad faith (subjective)
– Neutral/objective standard
6. Continuous for statutory period
– Continuous as would be used by owner, not necessarily literally

• AP is a combination of CL and statute – look to statute (if available) for

definitions/limitations on CL elements
• Sometimes the same facts can be used to establish more than one element (examples
– actual entry and O&N; hostility element and claim of right requirement)
 Fulkerson v. Van Buren
• What is source of AP law here?
– Constitution? Statute? Common Law? Combination?
• Go through each element of AP:
– Was there an actual entry by AP’er? When?
– Was there exclusive possession by AP’er?
– Was AP’er entry and use open and notorious?
– Was AP’er possession hostile/adverse? (w/o permission?)
– Claim of title: Did AP’er have required state of mind?
• What is the standard for state of mind required in this
jurisdiction according to the court?
– Was AP’er possession continuous for statutory period?
(What is statutory period?)
 Color of Title
• Distinguish from claim of title
– Claim of title/claim of right is 1 of the 6 elements of AP (state of mind)
– Color of title is not an element of AP, it is a type of AP claim

• Definition of color of title: an AP claim founded on a written

instrument, judgment, or decree that is defective/invalid

• If your AP claim is a color of title AP claim, you may be entitled to

more lenient requirements than a regular AP claim. For example,
– Shorter statutory period of possession that must be continuous
– More ways to show actual and/or open and notorious elements
– Ability to claim constructive possession of entire parcel, even if only
actually occupying a portion of it
 Boundary Disputes and AP
• Hollander v. World Mission Church
– Which element of AP at issue?
• Claim of title/right (i.e., state of mind) (referred to as
hostility requirement by this court)
• What standard does court say applies for claim of right?
Good faith, bad faith, neutral?
• Mistaken improver statutes
• Doctrines of agreed boundaries,
acquiescence, and estoppel
 Howard v. Kunto (Ct. App. Wash 1970)
• Facts? Everyone on everyone else’s property – off by one lot.
• COA? P is Howard, filed quiet title lawsuit to establish title in
themselves in the lot occupied by the Kuntos. D is Kuntos,
who claim title by AP.
• Two issues court focuses on?
1. Court focuses on continuous element – is it established by
summer occupany only?
2. Tacking - Second issue involves the statutory period –
whether a party who has satisfied the AP elements for only
part of the statutory period can “tack” their time with a
prior party who also satisfied the AP elements, and thereby
get benefit of full statutory period.
 Privity
• Privity of Contract: based on the
existence of a voluntary agreement with
promises from one party to the other

• Privity of Estate: based on voluntary

conveyance of a successive property
interest in the same property
 Disabilities
No standard disability statute for AP, must look to
specific language in state laws.
• Ex. on pg. 151: An action to recover the title to
or possession of real property shall be brought
within twenty-one years after the cause thereof
accrued, but if a person entitled to bring such
action, at the time the cause thereof accrues, is
within the age of minority, of unsound mind, or
imprisoned, such person, after the expiration of
twenty-one years from the time the cause of
action accrues, may bring such action within ten
years after such disability is removed.
 O’Keeffe v. Snyder
1946 Three paintings by O’Keeffe go missing from gallery, owned
by O’Keeffe’s husband, Stieglitz (O’Keeffe alleges they were
stolen; defendant Snyder alleges that Dr. Frank had possession
of the paintings in 1941-43; but for purposes of SJ motion on
his AP claim, Frank concedes they were stolen.)
1946-1972 O’Keeffe does not report the theft to the police nor advertise
the loss in an art publication, perhaps because the art had little
value at the time. She discusses the theft with associates in the
art world.
1972 O’Keeffe lists the paintings as stolen with the Art Dealers
Association of America.
1975 O’Keeffe learns of their location in New York. Frank’s son
sells the paintings to Snyder.
1976 O’Keeffe demands their return. Snyder refuses. O’Keeffe
institutes an action for replevin.
 Stolen chattels
• Common law rule: thief cannot acquire good title to property
and therefore cannot transfer good title to an innocent
purchaser, unless the SOL has run on the true owner’s cause of
action
• Therefore, key question to determine who has title – true
owner or innocent purchaser – is when did SOL begin running
on O’s COA? Depends which rule jurisdiction applies:
– Under the conversion rule (aka AP for chattels), SOL begins running
when actual entry occurs, i.e., the date the property was taken from
O. Subsequent possessor(s) must satisfy requirements for AP for the
statutory period.
– Under discovery rule, SOL begins running when O knew or should
have known through reasonable due diliengence of the COA (incl.
identity of possessor)
– Under demand rule, SOL begins running when O makes a demand for
return and possessor refuses
• After SOL has run out on O’s COA, then new title is in innocent
possessor by operation of law
 Adverse Possession Summary
• 6 elements – combo of CL and statute
1. Actual entry
2. Exclusive possession
3. O&N
4. Adverse = hostile = w/o permission
5. Claim of right/title – did AP’er have required state of mind (3 different
standards, depending on jurisdiction)
6. Continuous for statutory period
• Color of title – a type of AP claim where AP’r is claiming AP through a
defective written document – still must show CL elements, but may be
more lenient requirements
• Boundary disputes – can be addressed through AP; also mistaken improver
statutes; CL doctrines of agreed boundaries, acquiescence, and estoppel
• Tacking
• Disability
• No AP against the gov’t . . . no matter how long you camp out in Yosemite,
you can never AP it
• AP and chattels: AP approach is 1 of 3 approaches to determine ownership
between bona fide purchaser and original owner; but most states do NOT
use AP in this scenario, instead use discovery rule or demand rule.