PROPERTY (Section 1)
Spring Semester 2013

Adverse Possession III
Pages 193-204

You may also wish to review the CALI lessons for Adverse Possession, available on the CALI CD or on the web at www.cali.org.

1.  Often, boundary encroachments aren't discovered until one party conducts a survey. Twelve years ago, I had a landscape contractor build some retaining walls and landscaping beds along the edge of my property. Eight years ago, when the owners of the vacant lot next door began building a home on it, they had a survey done. I came home one afternoon and discovered a string staked up (presumably by the surveyor, along the boundary); if the string really marked the boundary line, it looked like the retaining wall encroached onto the neighboring land by anywhere from six to twelve inches for a distance of about 8 feet. The neighboring owners continued building their home; they later sold it. Neither the original owners nor the current owner have ever said one word to me about the location of the retaining wall.

Is my possession really "open and notorious" enough to allow me to now claim title to that portion of my neighbor's land by adverse possession?  Why or why not? What if the encroachment was a fence? What do you think of the analysis of the court in Mannillo v. Gorski (the 15" sidewalk encroachment, note 1, page 198)?

a. In considering these questions, evaluate the following argument:  "A small encroachment, such as the 15" sidewalk encroachment in Mannillo, should be treated as presumptively permissive in other words, we should assume that the neighbor is allowing the encroachment as a neighborly accommodation.  To require the neighbor to object to such trivial encroachments in order to protect their claim would promote unneighborliness between neighbors." Do you agree or disagree? Why?

b. Do you think that Mannillo and Stump v. Whibco are distinguishable? Do you think Stump was correctly decided?

c. Consider the problem of personal property, and go back to the situation in Benjamin v. Lindner Aviation. If the finding statute doesn't apply (as the majority alleged), then the Bank's only ability to acquire clear title (full ownership) of the money would have been by adverse possession. But when would the statutory period begin to run? When the money was found? When the finding affidavit was filed? When the true owner learned of the Bank's possession of the money? Or some other time? What's the appropriate result?

2.  Suppose that because of an error in reading a survey, Lambert builds a home that he thinks is located on his land, but is instead located entirely on Mitchell's land.  Lambert moves in and has been occupying the home for one month when Mitchell files suit to eject him.  On what basis (or bases) might Lambert be able to defend against Mitchell's lawsuit? Should Lambert lose the home he built on the land? Why or why not?

3. Here’s a capstone problem, which we'll also discuss during class. It addresses some of the issues discussed in the text following the Stump v. Whibco case, as well as serving to tie together many of the issues covered earlier in the adverse possession materials. You might also use this problem as a sample exam question and, as practice, attempt to write out what you think might be a complete answer.

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Since 1990, Williams (who lives in North Carolina) has been the record owner of Blueacre, Blueacre, located in Arizona. Blueacre is an undeveloped parcel of land, which Williams purchased with the expectation of ultimately building his retirement home there.

In 2007, Jones met Williams at a convention, and during their conversation, the subject of Williams's ownership of Blueacre came up. Jones realized that he bore a striking physical resemblance to Williams, and so Jones decided to set up a scam. Jones went to Arizona, where he represented himself to be Williams. Posing as Williams, he then began negotiating with Lambert to sell Blueacre to Lambert. Thinking that Jones was actually Williams, Lambert paid Jones $100,000, and Lambert received a deed under which Williams purported to transfer title to Blueacre to Lambert. [Unknown to Lambert, the deed was of course forged.]

During 2008, Lambert spent $350,000 building a home on Blueacre. After completing the home, he moved in. Since then, he has lived in the home for 6 months each year (he spends the other 6 months living at his home in Chicago; while he is living in Chicago, there is no one living in the home on Blueacre). Lambert has paid real estate taxes on the home each year since moving in.

In December 2012, while his grandchildren were visiting, one of Williams’s granddaughters was showing him how to use Google Earth to look at landmarks. Williams asked his granddaughter to help him find Blueacre. His tech-savvy granddaughter found it immediately, and asked "Hey, Granddad, when did you build that house?" When he looked at the screen and saw the house, he immediately became alarmed. He investigated further and, upon discovering Lambert was in possession, filed a lawsuit in late January 2013 to recover possession.

1) Can Williams recover possession, or has Lambert acquired title by adverse possession? Explain.

2) Assume Lambert has not acquired title by adverse possession. Does Lambert have any defenses or claims against Williams on account of (a) the $100,000 he paid for the land, (b) the $350,000 he paid to build a home on the land, and (c) the taxes he paid while occupying the home? What additional information, if any, would you want to discover in evaluating whether Lambert has any legitimate claims or defenses?