first-year law review

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Nov. 9 Property: Adverse Possession

Moving on to adverse possession… There are six general requirements that need to be met: hostility, claim of right, actual possession, openness and notoriety, exclusivity, and continuity. We’ll look at three cases now, and a few more tomorrow. The first is Tioga Coal v. Supermarkets General. Tioga Coal tried to get title of a street that ran between Tioga’s property and Supermarkets General’s property. Tioga Coal took possession of the street by locking a gate at the beginning of the street. The issue was whether hostility must be directed at the true owner (T.C. thought the government owned the street, but S.G. did). The court held that if the true owner hasn’t ejected the interloper within the time allotted for an action in ejectment, and all other elements of adverse possession have been established, hostility will be implied, regardless of the subjective state of mind of the trespasser. The reason for this holding is that the true owner could have initiated an action of ejectment, but didn’t. So if you don’t know who’s land you’re on, you’re okay.


The next case is Halpern v. The Lacy Investment Corp. The holding in this case expresses the minority view. When Halpern moved into his residence, he wanted to add some land to his backyard. He contacted the owner who rejected purchase offers, so he razed the land and took possession of it. Lacy subsequently purchased the land from the original owner. The court held that the plaintiff has to have a good faith claim of right to proceed in an adverse possession action. Thus, you have to think that the property is yours instead of knowingly taking it. I like this rule because you couldn’t just steal property. Like I said, however, this is the minority rule.

The final case is ITT Rayonier v. Bell. The holding in this case expresses the majority view. The court held that the hostility/claim of right element requires only that the plaintiff treat the land as his own as against the world. The nature of the possession is to be determined solely on the basis of the manner in which he treats the property instead of his subjective belief. I don’t like this for the obvious reason that you could just take land. It does, however, put the landowner on notice to keep tabs on his/her land.


November 9, 2006 - Posted by | Property

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