PROPERTY Adverse Possession Professor Joan C. Williams Spring 2007

1. PROPERTYAdverse Possession Professor Joan C. WilliamsSpring 2007

2. Oliver Wendell Holmes I should suggest 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. . . A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. A has a child 5 years later A dies A�s first child turns 21 16 years after A�s death A has a child 5 years later A dies A�s first child turns 21 16 years after A�s death

3. Richard Posner [There] is a point of diminishing marginal utility of income. The adverse possessor would experience the deprivation of the property as a diminution of wealth; the original owner would experience the restoration of the property as an increase in his wealth�.[T]heir combined marginal utility will be greater if the adverse possessor is allowed to keep the property.

4. Richard Epstein Every one knows that follows the rule of ordinary life that applies to such prosaic matters as waiting in line for theater tickets�:�first come, first served.��[I]t is the analytical foundation for the entire system of property�. The first possession rule promotes a system of decentralized ownership�[It] allows one to a system of rights that is not dependent upon the whim of the sovereign.

5. Environmental concerns Does AP jeopardize environmental values? Propose a statute Exempt wild lands Exempt wild lands

6. �Time does not run against the king� NO ADVERSE POSSESSION AGAINST THE GOVERNMENT!! �..why not?

7. CANE Continuous Adverse Notorious Exclusive Compare: prescriptive easement

8. 3 tests for adversity State of mind: intent to trespass State of mind: pure mind Objective test: was possession inconsistent with that of the true owner? A and B are neighbors. A constructs a fence on what she incorrectly believes to be her boundary line. In fact, it is 5 feet over the boundary. A uses the land as would an ordinary owner for SOL. Then B learns the truth and sue to eject. Result?A and B are neighbors. A constructs a fence on what she incorrectly believes to be her boundary line. In fact, it is 5 feet over the boundary. A uses the land as would an ordinary owner for SOL. Then B learns the truth and sue to eject. Result?

9. AP � without a written instrument

10. AP � written instrument Typically, SOL is shorter for AP with a written instrument. Say you get an invalid deed, or one signed by a corporate officer who has not authority to sell corporate property. You get all the land described in the deedTypically, SOL is shorter for AP with a written instrument. Say you get an invalid deed, or one signed by a corporate officer who has not authority to sell corporate property. You get all the land described in the deed

11. AP � written instrument

12. Tacking A takes possession, meets CANE for � SOL Then sells to B, who meets CANE for remainder of SOL �Privity of estate�: typically grant or will �Succession of trespassers�

13. Doctrine of agreed boundaries Uncertainty Agreement Acquiescence �A longstanding acceptance of a fence as a boundary line gives rise to an inference that there was, in fact, a boundary agreement between the coterminous owners resulting from an uncertainty or dispute as to the location of the true line.� Joaquin v. Shiloh Orchards, 145 Cal. Rptr. 495 (1987)