KH

Adverse Possession – Vocabulary Flashcards

Unit 1: Adverse Possession — Elements and Key Concepts

  • Opening thought (humor to frame topic):

    • If you want to know where the sale property line is, just watch your neighbor cut the grass!

  • Adverse Possession as a legal concept

    • What is it? A method by which possession of land can eventually lead to title in the possessor, subject to statutory requirements.
    • The idea behind it includes utilitarian and moral rationales discussed in class (see 4 major justifications below).
    • Not simply “taking” something; it’s a legal process with defined elements, burden of proof, and statutory periods.

  • Cases to know and the questions they raise

    • Gurwit v. Kannatzer – maps, surveys, and actual possession on undeveloped land; importance of boundary lines and the PLSS (Public Land Survey System).
    • Van Valkenburgh v. Lutz – New York rule requiring actual occupation for a set period and the necessary level of proof (enclosure or cultivation/improvement).
    • Fulkerson v. Van Buren – hostility and the state of mind required; majority vs. dissent on whether hostility was shown.
    • General procedural questions the cases raise: who sued whom? for what? on what legal basis? (conceptual framing of cases in the syllabus)

  • Goals and learning approach (how this course helps you study law)

    • Goals:
    • Develop effective and healthy long-term practices for lawyering
    • Enjoy a satisfying, ethical legal career (the “Happy Job”)
    • Achieve mastery akin to Olympic medalists (high-level performance)
    • Become an expert learner:
    • Spot patterns
    • Build deep chunked knowledge
    • Ready recall
    • Regular self-assessment
    • Develop skills:
    • Spot issues; critical reading
    • Deep understanding of rules; critical thinking
    • Organization: Course → Area → Rule → Exception (the funnel)
    • Ready recall; self-management (stress, time, efficacy, assessment)

  • Structure of legal reasoning in this course

    • Rules are built from a 5-part framework: 1) Elements 2) Explanations 3) Examples 4) Exceptions 5) Comparisons
    • The funnel model to read and reason: COURSE → AREA → RULE → EXCEPTION
    • Reading process (Directed Reading):
    • Important Facts
    • Procedure (There to here)
    • Question Presented (Issue)
    • Holding
    • Rationale
    • Other Opinions (concurrence, dissent)
    • Dicta
    • Writing expectations: Organization, clarity, simplicity; construct arguments showing why P would argue X or Y and why Z is better depending on facts, law, policy
    • Note-taking: capture what the professor says, issue framing, hypos, repeated points, watch-outs, links/organization, helpful comments

  • Core topic: Property rights, limits, and Adverse Possession

    • Property rights and limits (high-level):
    • Exclude (public accommodations; ADA; Civil Rights laws)
    • Possess (acquiring personal property; use like landlord–tenant; estates and future interests)
    • Use (affirmative and negative easements; covenants; zoning)
    • Transfer (real estate transactions; Rule Against Perpetuities)
    • Adverse Possession as a major mechanism interacting with these rights and limits

  • 4 major justifications for Adverse Possession (policy rationale)

    • Utility – Deters frivolous lawsuits
    • Utility – Corrects title defects
    • Utility – Encourages development
    • Moral – Protects personhood and the practical stability of land titles

  • Statutory framework (North Carolina example)

    • NC General Statutes: § 1-40
    • Core text (condensed):
    • No action for the recovery or possession of real property shall be maintained when the possessor, under known and visible lines and boundaries, has possessed adversely for 20\,\text{years} and such possession gives title against all persons not under disability
    • Implication: 20-year statutory period, known/visible boundaries, and adverse possession convert possession into title for those not under disability

  • Burden of proof in adverse possession

    • Plaintiff (P) is the claimant; defendant is typically the titleholder
    • Two burdens for the claimant:
    • Going forward (continuing possession consistent with ownership)
    • Persuading the fact-finder (satisfying the evidentiary standard)
    • Types of burdens/evidence commonly applied:
    • Clear and Convincing Evidence
    • Preponderance of the Evidence
    • Beyond a Reasonable Doubt (in some contexts, though not typical for AP, depending on jurisdiction)

  • Geographic/Survey context in Gurwit v. Kannatzer (illustrative of boundary issues)

    • The case uses the Public Land Survey System (PLSS) framework to analyze possession and boundaries
    • PLSS components:
    • Principal Meridians and Base Lines (37 meridians and base lines across the U.S.)
    • Range Lines, Township Lines, and Sections (¼, ½, ¼¼ sections; typical 160-acre sections; quarter sections are 40 acres; etc.)
    • Rectangular survey system (origin in Ellicott's Line; standardization of land parcels)
    • Visual cues in the map portions show how land is described and partitioned, which matters for determining actual possession and boundaries

  • Key concepts: actual possession and boundary questions (Gurwit-type issues)

    • Actual possession questions include: what counts as possession of undeveloped land? cutting timber, grazing, hunting, etc.?
    • The boundary implications influence what land a possessor could claim under AP and how much land may be possessed

  • Practical examples and hypotheticals used in class

    • Hypo 1 (Hypothetical about 10-year period in a 10-year statute): Z’s remote land in NM; B digs cacti and visits for 10 years, seeking title by AP
    • Hypo 2: NC subdivision; neighbor D waters/mows a strip of land that turns out to be part of C’s lot; question of AP rights
    • These hypotheticals illustrate the necessity of open/visible, continuous, exclusive, adverse, actual, and period-compliant possession

  • Elements of Adverse Possession (detailed) – standard formulation

    • Open (not hidden; visible and obvious use)
    • Continuous (possession over the period; not necessarily daily)
    • Exclusive (possession not shared with true owner or the public in a way that defeats exclusivity)
    • Adverse/Hostile (possession without permission; varies by standard used—objective vs. good faith vs. bad faith)
    • Actual possession (land used as an owner would given its nature)
    • For the statutory period (the state’s prescribed duration; NC often uses 20 years; others use 10 or 15 or 20)
    • Mnemonic hint sometimes taught: OCEAAN FOR 20 (Open, Court/Continuous, Exclusive, Adverse, Actual, (and the) Period; For 20 years)

  • Approaches to the adverse (hostile) element

    • Objective test (majority): state of mind irrelevant; what matters is that possession was without the owner’s permission
    • Good faith test: possessor believes in good faith that they own the land
    • Bad faith test: possessor knows they do not own the land and intends to take title from the true owner
    • Regardless of approach, possession under owner’s permission cannot satisfy AP
    • Commentary notes emphasize that the “state of mind” questions drive whether AP is met (especially under good/bad faith tests)

  • Continuous possession and tacking

    • Continuous possession does not require daily use; frequency should match what a typical owner would do given the land’s nature and location
    • Tacking: a subsequent possessor may tack prior possession periods if there is privity between possessors (e.g., transfer of possessory rights by deed)
    • Disability tolling: if the owner is under a disability at the start of possession (e.g., insanity, imprisonment, infancy), the statutory period may be tolled or extended depending on state law
    • Examples include the owner reaching majority or a tolling period until certain events occur

  • Color of Title (special route to AP)

    • Hypothetical examples address how possession under a defective deed (color of title) affects AP
    • NC Stat. § 138.5 (color of title): seven years’ possession under color of title creates a perpetual bar against those not under disability, subject to the seven-year window after the title descends/accrues
    • Important nuance: color of title can allow AP even if the deed is defective, provided the seven-year possession criteria are met

  • Disability and tolling considerations

    • Disability types: insanity, imprisonment, infancy, etc.
    • Tolling: the statute of limitations may be paused or altered due to disability, affecting when the AP period starts or how long it runs

  • Case study: Fulkerson v. Van Buren

    • Facts involve a dispute over property boundaries near a highway and wetlands, with a church as a disputing party
    • Key issue: whether the adverse possessor demonstrated hostility toward the true owner
    • Majority view: the church failed to show hostility
    • Dissenting view: the dissent offered a different assessment of hostility and the state of mind required for AP
    • Core question for students: what is the required state of mind (hostility) to support an AP claim, and how do different jurisdictions treat this?

  • Practical takeaways for exam preparation

    • Always identify the six or seven elements: Open, Actual, Continuous, Exclusive, Adverse (Hostile), For the statutory period, and (where relevant) tacking or disability tolling considerations
    • Distinguish between a strict objectivity standard (no need to prove owner’s awareness) and a subjective good faith/bad faith standard for hostility
    • Know that possession must be actual and typical of ownership given the land’s nature (e.g., farming vs. undeveloped land)
    • Be ready to discuss how boundary lines and boundary surveys affect AP analysis, especially in border land cases like Gurwit and Lutz
    • Recognize that statutory periods vary by state; NC uses 20 years; other states may require 10 or 15 years
    • Understand color of title nuances and how defective deeds can still lead to title via AP after sufficient possession

High-level outline of the cases and the legal questions they illustrate

  • Gurwit v. Kannatzer
    • Focus: boundary boundaries and possession on land described by survey; issues around actual possession of undeveloped land and how boundaries are determined
    • PLSS and map context help frame what land is potentially possessed and what is “land” for AP purposes
  • Van Valkenburgh v. Lutz
    • Focus: NY rule requiring 15 years of actual occupation for title under AP when not relying on a written instrument
    • Essential elements (for AP when not relying on deed): (1) protected by a substantial enclosure; or (2) usually cultivated or improved
  • Fulkerson v. Van Buren
    • Focus: hostility and mental state required for AP; whether the church’s possession was hostile; debates about whether hostility was demonstrable
    • Key question: what is the proper state of mind required to adversely possess land?

Quick reference: essential terms and their meanings

  • Adverse Possession: legal method of gaining title by possession that is open, notorious, continuous, exclusive, actual, and adverse for the statutory period
  • Open: possession that is visible and would be noticed by a reasonable landowner
  • Actual: possession that uses the land in a way that is typical for ownership given the land’s nature
  • Continuous: possession that is ongoing in a manner that a typical owner would use the land over the statutory period
  • Exclusive: possession not shared with the true owner to the extent a normal owner would exclude others
  • Adverse/Hostile: possession without the true owner's permission (mindset standards vary by jurisdiction)
  • Statutory period: the number of years required by law for AP to vest (e.g., 20\text{ years} in NC; other states may have 10\text{ years} or 15\text{ years} or 20\text{ years})
  • Tacking: combining successive possession periods with privity to meet the statutory period
  • Disability tolling: pauses or extends the AP period when the rightful owner is legally incapacitated (e.g., infancy, insanity, imprisonment)
  • Color of Title: possession under a defective deed that nevertheless can support AP after sufficient time

Visual/Map-related concepts (PLSS background mentioned in Gurwit)

  • Public Land Survey System (PLSS) components:
    • Principal Meridians and Base Lines
    • Range Lines and Township Lines
    • Sections and Quarter Sections (e.g., ONE EIGHTH SECTION = 80 ACRES; QUARTER SECTION = 160 ACRES; 40 ACRES; HALF SECTION = 320 ACRES)
  • Rectangular survey system origin and layout (Ellicott's Line; subsequent points of initial points/base lines)
  • The PLSS framework is essential to understand boundary descriptions and what land is within a claimant’s possession

Notable exam-style prompts from the slides

  • Hypothetical 1: If the statutory period is 10 years, analyze whether Z can claim title to land in NM by AP given B’s acts (digging, collecting cacti, and visits) over 10 years
  • Hypothetical 2: In NC, if D’s routine watering/mowing of a strip of land (20 feet wide) is discovered to be part of C’s lot and children had played there, what is the AP analysis?
  • For each case, answer: Who sued whom? For what land? On what legal basis? (Case framing and issue-spotting)

Summary takeaways for study

  • Adverse Possession is a balance between possession and legal title; it encourages productive use and stability of land titles while deterring disputes over long-ignored lands
  • Mastery comes from recognizing the pattern: Open, Actual, Continuous, Exclusive, Adverse, and the statutory period, plus any tacking or disability tolling considerations
  • Understanding the boundary and survey context (Gurwit) helps anchor possession analysis in real-world land descriptions
  • Different jurisdictions may differ on the hostility standard (objective vs. good faith vs. bad faith), so memorize jurisdiction-specific rules when studying for a particular state bar or exam
  • Color of Title and disability tolling add nuance to AP that can be the decisive factor in borderline cases

Quick concept check (ready for practice questions)

  • If a landowner openly uses a vacant plot for 15 years, is that enough for AP in a state with a 15-year period, assuming no permission? Consider: open, actual, exclusive, adverse, continuous, and the period.
  • How does tacking affect meeting the statutory period when successive possessors are not in privity? What must occur to allow tacking?
  • How does “color of title” alter the path to AP in states with a seven-year color-of-title provision (as in NC § 138)?
  • In Gurwit, how do boundary line descriptions within the PLSS impact the assessment of actual possession on undeveloped land?

Appendix: case names for quick recall

  • Gurwit v. Kannatzer – boundary surveys and actual possession on undeveloped land; PLSS context
  • Van Valkenburgh v. Lutz – NY AP with 15 years; essential elements via enclosure or cultivation/improvement
  • Fulkerson v. Van Buren – hostility/state of mind in AP; majority vs. dissent on hostility analysis

Final takeaway

  • Adverse Possession blends factual possession with legal standards; success hinges on proving all elements within the statutory framework, while considering jurisdiction-specific nuances like hostility standards, disability tolling, tacking, and color of title scenarios