PROPERTY (Section 1)
Spring Semester 2013
Adverse Possession I
Discussion Questions for pages 162-181

There are a number of CALI lessons that I've wrote several years ago (available on the CALI CD or on the web at www.cali.org) for the material on Adverse Possession. You may want to take a look at these as a supplemental reference in addition to the basic reading assignments.

In studying adverse possession, it is helpful to keep in mind that the basic standard for adverse possession is always the same: Has the claimant demonstrated possession that is actual, open and notorious, hostile/under claim of right, exclusive and continuous for the entire statutory period of limitations for an action to recover possession of land (i.e., land within the particular state)?

But there are various contexts in which adverse possession can arise. Broadly speaking, adverse possession claims can be divided into boundary or encroachment disputes (disputes in which one neighbor is claiming title by adverse possession to a portion of the neighboring land, based upon a dispute about the exact location of the boundary) and "nonboundary" disputes. Boundary disputes may arise accidentally (two parties don't know the precise boundary line between their parcels and act without discovering it, or they think they do but they end up being wrong). Or they may arise intentionally (I know I'm building the fence on my neighbor's property, but I'm confident my neighbor won't figure it out).

Nonboundary disputes also may arise intentionally (a squatter may take possession of unoccupied land that someone else owns) or unintentionally (e.g., I buy land from Myers, and take possession of it, but it later turns out that Myers never had a valid title to the land). The way in which the courts interpret and apply the basic standard for adverse possession may differ subtly in these different contexts.

1. The Iowa finding statute back in the Benjamin case functioned in some respects like the adverse possession doctrine does — if the finder had complied with the statute and the true owner didn't reclaim the object within one year, the true owner is thereafter barred from recovery. If one year is good enough in the context of lost personal property, why isn't it good enough in the context of land? Why should the statutory period be 5, 7, 10, 15, 20, or 30 years long?

2. In the Mullis case, why does Mullisís conduct satisfy each of the elements of the adverse possession standard?  Does it make good sense to allow Mullis to acquire title to the land by adverse possession when he never lived there, fenced off the land, or built a permanent structure? Why or why not?

3. The facts suggest that prior to the lawsuit, Mullis cut trees off the land only one time (although when he did, he cut all of the merchantable timber off the entire tract). Should this be viewed as "continuous" possession on his part? Why or why not?

4. In a case like Mullis, what would a true owner have to do to stop the running of the statutory period and thus protect her true ownership rights? Consider the effect of the following actions:

a. Mrs. Winchester sends Mullis a letter demanding "Vacate my land immediately."

b. Mrs. Winchester sends Mullis a letter demanding "If you remain in possession, you have agreed to pay me $5,000 per year in rent."

c. Mrs. Winchester goes onto the land each fall and cuts enough timber to heat her home for the winter months, and Mullis never objects or interferes with her conduct.

d. During Mullis's 5th year in possession of the land, Mrs. Winchester pays the current year's taxes on the land.

e. In response to letters from Mrs. Winchester asserting her ownership of the parcel, Mullis sends her a letter that says "Look, if you'll shut up, go away, and leave me alone, I'll pay you $5,000."

In which, if any, of these situations would Mullis's possession have been interrupted?

5. Should the law require anyone who seeks to establish title by adverse possession to prove that they have paid real estate taxes on the land in question throughout the statutory period?  Should payment of taxes be a necessary component for any adverse possession claim?  Should payment of taxes, by itself, be sufficient to establish title (i.e., should it be good enough for me to pay taxes even if I never physically occupy the land)?

6. Twelve years ago, Bailey bought a 10-acre parcel of land (including a home) at a foreclosure sale. Due to a mistake in the deed prepared by the person conducting the foreclosure sale, the land description in the deed actually described a parcel of land that was 12 acres in size and that included a portion of the adjacent land on which Henning was farming and grazing cattle. Bailey moved into the home and has lived there for the past 12 years. Does Bailey have any basis for a claim to the additional 2 acres described in his deed? Why or why not? What additional information, if any, would you want to know in advising Bailey as to whether he could expect to establish a claim of title for the entire 12 acres?