3.4 Adverse Possesstion

Adverse Possession意译为时效占有,也可以译为相反占有。时效占有也是取得财产所有权的一种方法,是指无法律根据而占有他人财产者,根据法律规定的时间在一定条件下取得此项财产的所有权,财产所有人在法定的期限内不行使权利即被丧失收回其财产的诉讼权利,所以有美国学者称时效占有为

为法律认可的小偷（Legalized Theft）,时效占有须具备一定的条件（Requirements of Adverse

Possession）:

1. Actual entry（实际占有,对标的物施以事实上、物理意义上的直接控制和管领）,

2. Exclusive possession（唯一占占有,也可以称为排他占有）

3. Open and Notorious（公开占有,是说这种占有必须是公开的,众所周知的和可见的）

4. Continuous uninterrupted possession（持续占有）

5. Statutory period（占有所持续的时间已经达到法律所规定的时效,时效又可译为statue of limitations）。

为了帮助读者更好的理解Adverse Possession,我们摘录一篇与其有关的短文,希望读者在阅读时注意以下几个概念:

color of title,privity, Objective Test, Subjective Test, Good

Faith, Bad Faith,等等。

Adverse Possession

A. Theory of adverse possession is that if within the number

of years specified in the statute of limitations, the owner

of land does not take legal action to eject a possessor who

claims adversely to the owner, the owner is thereafter barred

from bringing an action in ejectment and the adverse possessor

gains title to the land. If a man neglects to enforce his rights

he looses them.

-rationale is that an owner should be keeping a good eye on

his property and that if someone comes and take possession of

it, it is his fault, by virtue of the owner' absence he has

legally forfeits his rights .

-burden is placed on land owner to attend to check for squatters,

eject any trespassers, and go to court if can't get them out

through self-help

-government land generally exempt from adverse possession under

theory they couldn't watch over lands like a private owner should.

B. Adverse possession is a means of acquiring title to property

by long, uninterrupted possession. The running of the statute

of limitations on the owner's action not only bars the owner's

claim to possession, it ends the old title of the owner and

creates a new title in the adverse possessor.

- Doctrine of relation back says that a successful adverse possessor

gets a new title which dates back to the time when the statute

of limitations began to run. The old owner can no longer sue

for mesne profits （the reasonable rental value of the land）

during possession.

- a possessor's claim was originally good against everyone but

the true owner, after statute of limitation runs it is superior

to the whole world

- new title by adverse possessor can be transferred as any other

through deed （alienable）, will （transferable）, or intestacy

to heirs （descendible）

- can't record title through adverse possession in court because

there is not recordable document, unless adverse possessor files

a quiet title action against the original owner which will record

title

- adverse possession is legislative in length of statute of

limitation and judge made in regards to other requirements such

as adversity

C. Statutory period, length of time required to gain land through

adverse possession, varies from state to state. In California

it is only 5 years, others have periods up to 21 years.

- modern trend is to shorten the period of adverse possession

B. Adverse possessor before acquiring title can evict a subsequent

possessor because she is a prior possessor and has title superior

to all, but the true owner. She can transfer her property interest,

possession, to another in tacking. However, she had no interest

in the property against the true owner.

F. Requirements of Adverse Possession: an adverse possessor

must show 1） an actual entry, 2） giving exclusive possession

that is, 3） open and notorious ,4） adverse and under a claim

of right 5） continuous for the statutory period.

1）Actual entry is necessary to begin the cause of action and

start the statute of limitations running.

-if someone actually enters part of the land described in a

deed, the possessor may be deemed in constructive possession

of the rest, but have to show actual entry of some part of the

land.

2） Exclusive possession, adverse possessor must not be sharing

possession with the owner nor with the general public； idea

is that if the adverse possessor was sharing possession with

the owner or someone else the owner may not realize that the

adverse possessor was claiming ownership against him

- It is possible for two or more persons living together to

acquire title by adverse possession as tenants in common

3） Open and Notorious, the adverse possessor must occupy the

property in such as way that an attentive and reasonable land

owner would know that someone was occupying the land and claiming

possession. There is not actual notice requirement, but the

idea is to give the owner a chance to defend his property rights.

。 acts have to resemble those of an owner of the property, community

observing those acts would infer that the actor was claiming

ownership

。the type of act required depends on the type of property involved,

must resemble that of the owner, so if farm land need to cultivate,

wild land need to hunt on it and build cabin, city dwelling

need to put up a fence etc,

。 Each state may develop statutory requirements in addition

to the usual requirements to claim land through adverse possession.

Some require color of title, some, like N.Y, specify that if

there is not color of title adverse possessor must have substantially

enclosed land, and cultivated and improved it. Common law didn't

require that land be put to good use, but some statutes require

it.

4） Adverse, under a claim of right, possession must be without

the owner's consent （sometimes referred to has hostile, but

does not refer to any animosity）。 Adversity is meant to assure

that owner knows of a possessor's claim to assert title, claim

of right. Further requirement, beyond lack of consent, for adversity

depend upon statutory additions and whether court applies an

objective or subjective （good faith/bad faith） test.

。 Objective Test: Majority view that the state of mind of the

possessor is irrelevant, adversity is determined by actions,

whether or not he is occupying the land without the permission

of the owner. If adverse possessor looks like he is claiming

ownership, and the community would view him as such then the

claim is adverse.

- Under objective test someone can gain title through adverse

possession even though not actually calming title against true

owner if actions indicate as that he is occupying the land as

if he was the owner

。 Subjective Test: The state of mind or intent of the adverse

possessor is evaluated to determine adversity, could be either

good faith or bad faith test. Criticized because it encourages

people to lie on the witness stand either to claim honest mistake

or malicious intent, it's irrelevant in objective test

。 Good Faith, adverse possessor honestly believes that he has

title to the land and that his possession is not adverse.

- under good faith test, if possessor knows he does not have

title and someone else does, he can't obtain title through adverse

possession even if he meets all other requirements because his

possession is not deemed adverse, mere squatter can't be adverse

possessor under this test

- Many states require an act of good faith, even those claiming

to adopt an objective standard. A possessor acting under an

honest mistake is holding adversely, but a person who knows

the land is not his and occupies it with bad intentions should

not gain title to someone else's land.

- California overtly requires good faith, plus payment of property

taxes

。 Bad Faith （aggressive trespass standard） adversity possessor

must know that he does not have title and still intend to occupy

the land and claim ownership anyways. This is small minority

view.

- some states say （at least in boundary disputes） that if possessor

mistakenly believes he has title, but would not claim title

if he knew the truth, that he is not occupying adversely

- criticized for rewarding intentional wrongdoing and punishing

those who made honest mistakes

。 Payment of property taxes is needed in several Western states,

including California, to gain land through adverse possession.

Payment of taxes are recorded in the courthouse and give notice

to the owner of an adverse possessor.

-even if not required, paying taxes is a good indication of

a claim of right

。Color of Title is a claim based on a written instrument （such

as a deed or a will）, or a judgment or decree which, unknown

to the claimant, is defective, and invalid. This arises when

the grantor of the deed does not actually own the land he deeded,

when the grantor is mentally incompetent, or when the deed is

improperly executed.

- Color of Title is proof of adversity in and of itself, it

is a prima facie case for claim of right, it thus reduces the

burden and thus makes attaining land through adverse possession

easier

- Most states require that grantee takes possession without

knowledge of the defect and must hold the faulty deed in good

faith

- Most states don't require color of title, even in good faith

requirement states, oral transfer can constitute honest claim

of title

- Some states reduce the length of the statutory period for

those claiming under color of title, or make requirements for

proving adversity more lenient if have color of title

。 Constructive adverse possession is a major advantage of color

of title in all states. The idea is that if a possessor enters

part of the land to which he thinks he holds title and satisfies

all the elements of adverse possession on that portion, he can

claim constructive possession over the rest. Without color of

title can only gain title to the land you are actually occupying,

with it one can claim the whole deed.

- The land has to be occupied in reasonable proportion to the

total deed, if occupy tiny fraction can't claim whole property

through constructive possession.

- If two adverse possessors occupy opposite ends of land and

the prior possessor occupies under color of title, he can eject

the subsequent possessor because he was constructively there

first.

- There are limits to the power of color of title. If an adverse

possessor is occupying one end of a property under color of

title and the true owner is occupying the other end, TO will

get part he is occupying and middle area because TO's deed is

valid and was there first.

- If two adverse possessors A1 won't get whole thing even though

claiming under color of title because constructive possession

interrupted by A2. A1 will get section he occupied plus the

middle.

- If adverse possessor only occupies part of one of two contiguous

lots can't claim adverse possession of the whole thing through

color of title unless the lots are owned by the same person.

Otherwise, owner wouldn't know that he was claiming adversely

and be able to stop it.

。 Boundary disputes often involve adverse possession when a

neighbor mistakenly believes a strip of land along an adjoining

boundary to be his and openly and notoriously occupies it. Majority

of states apply an objective test, some apply subjective （bad

faith） requirements for boundary disputes.

-Objective test in boundary disputes say possessor's mistake

or state of mind is irrelevant, if it appears to the community

that he is claiming ownership and does not have permission of

the true owner, than he is possessing adversely and has a claim

of right.

-Maine doctrine, Subjective test, say that if possessor is mistaken

as to where the boundary is and would not have occupied or claimed

the land if he had known the accurate line, then the possessor

doesn't have the intent to occupy adversely, bad faith test

in which intent matters.

- Subjective test, good faith requirement doesn't really apply

in most boundary disputes where it is an honest mistake, but

courts could require that possessor honestly believed the land

to be his own

- New Jersey view is an objective test, but if encroachment

is of a small area which is not obvious and requires an on-site

survey to disclose, then is not open and notorious, and the

statute of limitations doesn't run unless the owner has actual

knowledge of the encroachment

- If neighbors make an oral agreement about a disputed boundary

line, the agreement is enforceable, though not as a conveyance

- Long acquiescence, though it may be shorter than the statute

of limitations, can be held as an agreement over a boundary

line

- Estoppel says that if one neighbor makes positive representations

about a boundary line or remains silent, and the other neighbor

relies on such representation （Ex. spends lots of money ）, then

the first neighbor can't change his mind and claim another boundary

line.

。 A mistaken improver, someone who mistakenly erects a building

or part of a building on a neighbor's land thinking that it

was his own would be forced to remove his improvements at common

law. Modern trend is to give a good faith improver some relief

by either letting him pay damages to the neighbor or giving

the neighbor the choice of paying the improver for the value

of the building or selling the improver the land.

- Equitable relief is only available for those who acted in

good faith.

If a neighbor makes an intentional encroachment onto a neighbor's

land, the encroacher has to remove it or make a bargain with

his neighbor.

5） Continuous, uninterrupted possession throughout the statutory

period requires only a pattern of occupation similar to the

type of an average owner of that particular property. Adverse

use can be deemed uninterrupted even though there are periods

where the possessor is absent if the adverse state of mind continues.

- Purpose of the continuity requirement is to give the owner

notice that the possessor is claiming ownership and not just

entering in a series of trespasses. Owner thus not only has

to check regularly, but check at the right time.

。Seasonal use can satisfy the continuous requirement as long

as a normal owner would use the land in that way. Howard v.

Kunto, a summer home only needs to be occupied during the summer

for the length of statutory period. Same applies for seasonal

use of hunting cabin or grazing land.

。 Abandonment is the intentional relinquishment of possession,

if possessor abandons for any length of time without intent

to return, continuity is lost and statute of limitations starts

all over again should she return.

。Tacking by successive adverse possessors satisfies continuous

possession for the statutory period. One can tack onto his own

period of adverse possession any period of adverse possession

by predecessors in interest, but there must be privity of estate

between the adverse possessors. Howard v. Kunto with house that

were one lot off.

-Privity of Estate means that a possessor voluntarily transferred

to a subsequent possessor either an estate in land or physical

possession （ a reasonable connection between new and previous

possessor）。 If the transfer is not voluntarily, i.e. one possessor

ousts another possessor there is no privity of estate and tacking

is not allowed.

-privity is required because courts feel adverse possession

should be awarded for meritorious conduct and ousting someone

is not

-Tacking is not permitted where one adverse possessor abandons

the property and another enters immediately, there is not privity

of estate because the transfer was not voluntary

- Re-entry by adverse possessor who was temporarily ousted picks

up the statute of limitations where it left off. The possessor

can tack on her prior possession, but not the period in which

she was ousted, because during that time the owner did not have

a claim against her.

Tacking runs on the owner's side once adverse possession has

begun the statute of limitations runs against the owner and

all of his successors in interest. Gives advantage to the adverse

possessor.

两个与Adverse possession有关的经典案例:

1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94

Facts: AA-appellee sought to sell half of his

waterfront land to another party, and so had a survey performed

to determine the exact lay of his property. When the survey

was performed, however, it was found that the previous surveys,

which were used for determining the deeds that were recorded

for each plot in the neighborhood, were in error by 50ft. Thus,

each lot that was occupied actually belonged in deed to the

person's next-door neighbor. BB-appellant occupied a house on

property that was described in the deed acquired by AA-appellee,

who sued for recovery of the land described by the deed. BB

contended that a long string of previous occupiers of the house

adverse to AA constituted a new title in BB.AA argued that BB

could not tack his adverse possession time onto that of his

predecessors because it was only a summer house, and therefore

not "continuously" occupied, and that the chain of

possessors was not in "privity" because the deed was

to the wrong tract of land. Trial court ruled for AA, BB appealed.

Issue: 1. Is a claim of adverse possession defeated

because the house was only used as a summer property？ 2. Can

a person who has recorded title to a tract of land adjacent

to his, but thinking that he has correct title to the land which

he possesses, tack his adverse possession onto the previous

periods of occupancy which went before his？

Holding: 1. No. To establish continuity of possession,

a person must only occupy the property for periods of time which

are consistent with the nature of the property. 2. Yes. Where

there are several successive bona fide purchases and recordings

of a deed to a tract of land adjacent to the tract of land occupied,

and the cumulative possessions are longer than the statute of

limitations for actions to recover property, there is sufficient

privity to permit tacking and thus establish adverse possession.

Reasoning: 1. The court reasoned that the rule

of continuity was not one requiring absolute mathematical continuity,

but rather if the land is occupied during the period of the

year when it is capable of use, that is sufficient. 2. The requirement

of "privity" is intended to keep chains of unrelated

squatters from voiding the title of the original owner, and

clearly those are not the facts in this case. Each possessor

was a bona fide purchaser from the previous one. Furthermore,

where a person claims more than his deed describes, the question

of privity is not defeated, so it should be the same for where

the deed describes an adjacent parcel of land.

Notes: 1. The privity requirement can be fulfilled

by a relation between disseisors of grantee/grantor, ancestor/heir,

or devisee/devisor. Possession need not be directly by the disseisin,

but may be by someone authorized by him. 2. A possessor can

claim title to a land which he occupied for the statutory period

under the mistaken belief that it was his own, even though he

may not have muniment of title. 6. Most statutes have disability

clauses that extend the period required for adverse possession

if the owner is a child, insane, incompetent, etc. However,

there can be no tacking of disabilities, the statute runs with

any change in ownership. 7. There has been opinion recently

that the disability clauses should be removed because they prevent

some cases from being settled in a reasonable time when there

is clearly no opposition from the disabled land owner. The theory

is that the disabled persons relatives/friends will look out

for him, and the occasional loss will be offset be the increased

security against latent claims by disabled persons suddenly

being brought forward.

2 O'Keeffe v. Snyder （1980）； pg. 145, briefed 9/27/94

Facts: O'Keeffe is the painter who painted several

paintings that she claims were stolen from her studio in 1946.

She did not advertise that they were missing until 1972 when

she registered them as stolen with an Art Dealers Association.

Snyder bought the paintings in question in 1975 from a dealer

who claims that they were in his family since perhaps as early

as 1941-1943 （before the claimed theft）。 O'Keeffe discovered

the paintings in Snyder's gallery in 1976 and instituted an

action of replevin to recover them. Snyder claims both that

the statute of limitations for replevin of chattels had run,

and that he had held the paintings in adverse possession, through

tacking with the dealer's family, for over 30 years. Trial court

issued summary judgment for Snyder, holding that the statute

of limitations had commenced running on the date of the original

theft. Appellate court reversed and entered judgment for O'Keeffe

holding that Snyder had not proven the elements of adverse possession.

Issue: Who has best title to the paintings？

Holding: 1. Unlike in real estate adverse possessions,

in cases involving personal chattels, a cause of action will

not accrue, and thus the statute of limitations will not begin

to run, until the injured party discovers, or by reasonable

diligence should have discovered, facts which form the basis

of the action. （Discovery Rule）。

Dicta: 2. The expiration of the statute of limitations

bars the remedy to recover, and also vests good title in the

possessor. 3. In establishing adverse possession of personal

chattels, tacking of periods of possession between parties in

privity with each other is permitted in the same way as with

real estate.

Reasoning: 1. The literal language of the statute

of limitations results in harsh holdings when the property in

question is one which is easily concealed, or its display is

not visible broadly enough to put the owner on sufficient notice

of the identity of the possessor （analogy to jewelry worn）。

It would encourage larceny to hold that the strict letter of

the statute would prevent the owner from recovering an item

of which he never knew the identity of the possessor. 2. Before

the statute runs out, the possessor has a voidable title against

all others but the true owner. To leave the title in the original

owner after adverse possession would not put issues to rest

that were deserving of resolution because of their age and action

of the owner. 3. Not to permit tacking would enable the original

owner to have rights much longer than the statute of limitations,

and put a subsequent buyer in a worse position than the person

who took it wrongfully in the first place.

网友方明译:

这两篇好难翻译呀,硬翻了翻,欢迎大家一起探讨！

1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94

案情: 被上诉人AA为了将一半属于自己的临水土地卖给他人,对所属土地的位置进行了一次准确测量。然而,测量结果出人意外:其地契所依据的前次测量存在错误,在于邻居相连的每一单位土地上都有50英寸的误差,也就是说标明在地契上的这些单位的土地,实际上应归其邻居所有。而上诉人BB有一套房屋却位于被上诉人AA地契所标注的土地上,于是AA起诉要求恢复行使地契上的土地权利。BB提出主张,认为长期占有该房屋已经构成了自己的一项新权利。AA提出反驳,BB在时间上不符合先占时效,理由是该房屋仅仅是避暑别墅,不能能构成连续占有。而且,这种连续占有不因为地契有误而构成一种“默示”。法庭判决AA胜诉,BB因此上诉。

问题:1.仅仅因为这套房屋是避暑别墅就能使时效先占的主张败诉吗？2.对于相邻的有契约记载的土地,如果认为自己是合法拥有者而占有该土地,那么能不能形成对该土地时效先占呢？

裁决:1.不能。对于连续占有的构成,只要占有财产的时间与该财产的一般用途相一致即可。2.能。如果一个相邻的土地,其上存在几个连续的真实交易,且有契约记载,持续被占有超过法令规定的诉讼时效,并且有充分的占有默示,那么这就构成了时效先占。

分析:1.法庭充认为连续占有规则并不是要求绝对精确的连续,而是只要该土地在一年中能够使用的期间被占有,这就足够了。2.“默示”要求有意排除交易链中的无关方,以避免使原所有人权利无效,并且表明在此种情况下的不实之处。每一个土地现持有者都是前持有者的正当购买人。此外,如果有人主张地契记载之外的土地,默示成立的话,那么对于地契记载的相邻土地,默示也应当成立。

注解:1.默示的要求可以通过受让人/被受让人、被继承人/继承人、接受遗赠人/遗赠人中的抢夺者之间的关系来实现。占有不必直接去侵占,通过授权人也可以。2.即使没有土地所有权凭证,占有人仍可以对其错误认识下占有的超过法定期限的土地主张权利。6.大多数法令都有限制条款,这些条款扩大了所有人是儿童、精神病患者、无能力人等的时效占有的期间。〈然而,残疾人不在其中,其任何所有权的变动依照法律规定。〉7.近来,有人提出废除限制条款的主张,理由是,当土地所有人是无能力人,而这些无能力人又没有明显的反对意见的话,这些条款成了案件在合理时间内解决的障碍。<理论上讲,无能力人的亲戚/朋友,可以代理其行为,况且特殊情况下的损失可以通过增加安全性以防止无能力人潜在的突然提前提出主张的可能性来抵消？gt；

2 O'Keeffe v. Snyder （1980）； pg. 145, briefed

9/27/94

案情:O'Keeffe是一名画家,是几幅油画的作者。她认为她的这几幅油画是1946年从其画室盗走的。直到1972年,她向一家艺术经销协会注册这几幅油画时,才声明油画被盗,而此前她一直未做遗失广告声明。Snyder于1975从一商贩处买下这些有权利瑕疵的油画,商贩称这些油画家中早有,时间约在1941-1943年（早于所称被盗时间）。1976年,Keeffe在Snyder的画廊展馆内发现自己的这些作品,于是提起诉讼要求返还这些油画。Snyder认为不管是根据动产返还限制的法律规定,还是自商贩家中得到这些油画,已超过三十年,从时效占有,他都是这些油画的所有人。初审法庭判决Snyder胜诉,认为油画从最初被盗之日,时效就开始起算。上诉法庭推翻原判,判决O'Keeffe胜诉,认为Snyder不能证明时效占有的基本事实。

问题:谁是这些油画的真正权利人呢？

裁决:和不动产的时效占有不同,在涉及动产的案件中,原告的诉讼缘由不是自然增加的,因此诉讼时效是从被损害方发现或者有合理的细心而应该发现构成基础的起诉事实时,开始起算。（发现规则）

断言:2.过期的诉讼时效阻却了权利的恢复救济,同时赋予占有人合法的所有权。3.动产的时效占有,在当事人之间对占有期间的默示与不动产的时效占有的默示是相同的。

分析:1.诉讼时效的法律规定在字面上导致这样不良的观点,有权利瑕疵的财产容易被隐藏,或者它的存在不够显而易见,以便使所有人充分注意确认持有人的身份（比如珠宝饰物）。这就鼓励盗窃者认为法律严格的字面意思将会使动产的所有人因不知道谁是真正的持有人而无法行使返还该动产的权利。2.时效期满前,持有人享有除对抗真正所有者以外的所有人,但是可以撤消的权利。<为了使时效占有之后的原所有人的权利引起的一系列问题不保持静止不动,更因为这些问题在年限和诉讼上,因此应当得到很好的解决。3.如果不允许先占的话,就会造成原所有人行使权利的期限远远长于诉讼时效,这样就使后买者处在比最初者更糟的位置