Skip to main contentAdverse Possession - Disability Rule
Basic Disability Rule
- Disability pauses the statute of limitations for adverse possession
- The disability must exist at the time the adverse possessor enters the property
- If the disability arises after the adverse possessor has entered, it does NOT pause the clock
Types of Disabilities
Three recognized disabilities (only need one):
- Minor (under 18 years old)
- Incarceration (imprisonment)
- Insanity/Unsound Mind
Critical Timing Rule
EXAM TIP: The disability must exist at the time of entry. This is a frequently tested bar exam issue.
Example Hypo:
- AP occupies Blackacre in 2010
- Owner goes to prison in 2011 (after entry)
- Owner released in 2016
- 10-year statute of limitations
- Owner files lawsuit in 2024
- Result: AP wins because the disability (imprisonment) did not exist at the time of entry in 2010
Correct Example:
- Owner is a minor in 2013 (age 16)
- AP enters in 2013
- Owner turns 18 in 2015
- 10-year statute begins running in 2015 when disability ends
- AP could acquire title in 2025 (10 years from 2015)
Requirements for Insanity Disability
- Adjudication required: There must be some form of judicial or quasi-judicial finding
- Depression and suicidal ideation alone do not qualify without formal adjudication
- Must involve due process (court judgment, board decision, conservatorship, mental hospitalization)
- A physician’s diagnosis alone is insufficient
No Tacking of Disabilities
Important Rule: Disabilities cannot be “tacked” (combined sequentially)
Example:
- If a minor transfers property to someone who is in prison
- The clock starts ticking upon the transfer
- Cannot pause the clock for both disabilities in succession
Transfer of Property During Disability
- The statute of limitations begins running when there is a transfer of ownership, even if the new owner has a different disability
- Clock will not begin until the disability is gone OR there is a transfer in ownership
Proper Terminology for Exams
Avoid: “The clock starts ticking” or “the clock stops”
Better Phrasing:
- “The statute of limitations will begin to run”
- “The statute of limitations will not run against the true owner”
- “The time period will not run”
- “The statute of limitations period begins”
Adverse Possession - Tacking
Definition
Tacking allows successive adverse possessors to combine their periods of possession to meet the statutory period.
Requirements for Tacking
Privity must exist between successive adverse possessors:
- Some formal connection or transaction between the parties
- Recognized legal instrument (deed, contract, will)
- Sale, gift, mortgage, or other transfer
- Cannot be mere abandonment followed by new occupancy
What Constitutes Privity
Sufficient:
- Sale with deed
- Gift (typically requires writing per Statute of Frauds)
- Will/inheritance
- Contract
- Any recognized legal instrument showing transfer
Insufficient:
- Abandonment followed by new possessor finding the property
- Saying “good luck” to someone taking over the property
- No formal transaction or instrument
Classic Tacking Example
Scenario:
- A builds swimming pool encroaching 3 feet on neighbor’s property
- A occupies for 5 years
- A sells property to B (with deed)
- B occupies for 5 years
- 10-year statute of limitations
- Result: A’s 5 years + B’s 5 years = 10 years (tacking allowed due to deed creating privity)
The “Good Luck” Hypo
Scenario:
- First adverse possessor growing apples, decides to leave
- Second person asks: “Can I have a go at this?”
- First person responds: “Good luck!” and leaves
- Issue: Is “good luck” sufficient to establish privity?
- Answer: Likely no - it’s a figure of speech, not a formal transfer, gift, or instrument
Elements of Adverse Possession (Review)
Historical Context
- Common law statute of limitations: 20 years
- Modern trend: 3 to 30 years (typically 6-10 years)
- California: 3 or 5 years
Purpose of Adverse Possession
- NOT to reward trespassers
- To punish true owners for “sleeping on their rights”
- Encourages productive use of land
- Promotes certainty in land titles
Basic Elements
- Actual entry/possession
- Open and Notorious
- Hostile (without permission)
- Continuous for statutory period
- Exclusive
Case Law: Actual Entry
Van Valkenburgh v. Lutz (New York - Minority View)
Facts:
- Lutz family used triangular lot for 30+ years
- Built shed, grew vegetables, used as pathway
- No formal deed
- Van Valkenburgh purchased record title, sued for trespass
Issue: Did the Lutzes satisfy the “actual” entry requirement?
Holding: No - adverse possession claim failed
Minority Rule (New York):
- Land must be “sufficiently enclosed” or “usually cultivated or improved”
- Requires use comparable to how a reasonable owner would use the property under the circumstances
Court’s Analysis:
- Shed with miscellaneous items
- Vegetable garden (not robust)
- No fence or enclosure
- Just “miscellaneous activity”
- Not using land as a reasonable owner would
Comparison to Reasonable Ownership:
- Reasonable owner would likely: build structure, fence the property, maintain it consistently
- Lutz’s use: sporadic, no clear boundary markers, junk on property
- Hard to determine if someone actually residing there
EXAM TIP: This is a minority view. Most jurisdictions do not require enclosure.
Case Law: Open and Notorious
Mannillo v. Gorski (New Jersey)
Facts:
- Steps installed that encroached 15 inches onto adjacent property
- Encroachment discovered only upon survey
Issue: Was 15-inch encroachment “open and notorious”?
Holding: No - too de minimis
Rule: Open and notorious requires that a reasonable true owner, upon reasonable inspection, would be able to recognize the adverse occupancy
Analysis - Size of Property Matters:
- Small urban lot: 15-inch encroachment likely noticeable
- Large rural property (60 acres): 15-inch encroachment unlikely to be visible
- Size of property is a relevant factor
Test: Would a typical person, upon reasonable inspection, recognize adverse occupancy?
- 15-inch encroachment didn’t “capture the eye”
- Average person wouldn’t recognize property line violation
- Too de minimis to raise notice
Garage Encroachment Example
Per page 84: “Garage encroachment extending a few inches over the boundary line fails to supply proof of occupation by improvement”
Case Law: Hostile/State of Mind
Three Views on State of Mind
1. Majority View - State of Mind is Irrelevant
- Does NOT matter if possessor:
- Thought they owned it (good faith mistake)
- Knew it wasn’t theirs and intended to take it (bad faith)
- Only question: Did they have permission?
- If no permission → trespasser → hostile
2. Good Faith View (Connecticut Rule)
- Requires possessor honestly believed the land was theirs
- “I thought I owned it”
3. Aggressive Trespass View (Maine Doctrine)
- Requires possessor knew they didn’t own it but intended to make it theirs
- “I didn’t own it but intended to take it from you”
EXAM APPROACH:
- Use majority view as default
- State of mind is irrelevant
- Focus on whether possession was non-permissive
Mannillo v. Gorski (Continued - Good Faith Issue)
Facts: Gorskis claimed “we thought it was our property, we’re sorry”
New Jersey Requirement: Good faith belief
Most jurisdictions: Have abandoned this requirement (per page 97)
Case Law: Continuous Possession
Howard v. Kunto (Washington)
Complex Facts (Think “Peace Sign”):
- Properties A, B, and C
- Everyone living on their adjacent neighbor’s property
- Everyone adversely possessing each other
- Deeds describe one parcel but occupying different parcel
Issues:
- Continuous possession
- Tacking
Continuous Possession - Seasonal Use Rule
Facts:
- Property used as vacation/ski home
- Occupied only 3 months per year (January - April)
- Owner in different location rest of year (Santa Monica)
- Year-round upkeep maintained (gardeners, etc.)
Issue: Can seasonal use satisfy “continuous” requirement?
Holding: Yes, if consistent with the character of the property
Rule: Continuity depends on the characteristic use of the property type
- Is it typically used as seasonal/vacation property?
- Is it commonly used for skiing, beach access, etc.?
- Does possessor use it consistently during the relevant season?
Analysis:
- Not abandonment if possessor returns each season
- Evidence of constant upkeep
- Use as reasonable owner would use seasonal property
- Mammoth ski cabin: seasonal use reasonable
- Lake Tahoe summer home: summer-only use reasonable
Distinguishing Abandonment:
- Constant upkeep = no abandonment
- Intent to return = continuous
- Seasonal pattern consistent with property type
Tacking in Howard v. Kunto
Facts: Multiple successive owners, each adversely possessing wrong parcel
Issue: Can successive adverse possessors combine their time periods?
Rule: Yes, if privity exists between them
Application:
- Deed ran between successive adverse possessors
- Deed = legally recognized instrument
- Establishes buyer-seller privity
- Allows tacking: A’s time + D’s time = statutory period
Formula: A (5 years) → sells to D → D (5 years) = 10 years total
Adverse Possession of Chattels
Definition
Chattel: Personal property (not real property)
- Horses, jewelry, art, cars, phones, casebooks, cats, china, etc.
- Can be adversely possessed like land
Different from Land Theft
- Not designed for intentional thieves (“I’m taking your water” = theft)
- Designed for good faith recipients
- “I bought this legitimately, how was I supposed to know it was stolen?”
Special Timing Rule - Discovery Rule
Traditional Rule: Statute runs from time of dispossession
Problem: How is true owner supposed to find stolen/lost chattel?
Modern Approach: Clock depends on true owner’s efforts
Case Law: O’Keeffe v. Snyder (Chattels)
Facts:
- Painting went missing
- Discovered years later in gallery/home
- True ownership disputed
- Unclear if stolen or lost
Issue: When does statute of limitations run on stolen chattels?
Rule: Statute of limitations pauses if true owner makes reasonable good faith efforts to locate the chattel
The Reasonable Efforts Test
Statute PAUSES if true owner:
- Reports to police
- Hires private investigator
- Contacts galleries/dealers
- Places advertisements
- Makes constant, ongoing efforts
- Acts diligently and reasonably
Statute RUNS if true owner:
- Sits back and does nothing
- Makes only minimal effort
- “Hopes it comes back one day”
Key Principle: Not a single effort, but a collection of efforts over time
Examples of Sufficient Efforts:
- Working with police + hiring private investigator + contacting galleries + advertisements = sufficient
- Just reporting to police alone = likely insufficient
- “I looked under a couple rocks at the beach” = clearly insufficient
Agency and Efforts
Question: Does delegating to police/private investigator count?
Answer:
- Private investigator = agent of owner → their efforts = your efforts
- Police alone = may not be enough
- Must consider what owner could do independently
- Contact other galleries, hire investigator, advertise, go door-to-door
Gifts (Introduction)
Three Elements of a Valid Gift
- Intent (present intent to transfer)
- Delivery
- Acceptance
Intent - Present vs. Future
Invalid (Future Intent):
- “One of these days, I want you to have this ring”
- Speaking of future, not present
- No present intent to divorce oneself from title
Valid (Present Intent):
- “I give you this ring now”
- “This is yours”
- Present transfer of ownership
Delivery - Three Types
1. Actual Delivery
- Physically handing over the item
- “Here’s the cell phone” (hands over phone)
- Easiest and most straightforward
2. Constructive Delivery
- Used when actual delivery is impractical or impossible
- Giving key to represent car
- Giving deed to represent land
Example:
- Can’t pick up car and put in suitcase
- Put key in box as 16th birthday gift
- Key represents the car
3. Symbolic Delivery
- Symbol represents the gift
- Similar to constructive delivery
When to Use Constructive/Symbolic:
- Actual delivery impractical
- Item too large (car, land)
- Item cannot be physically moved
Engagement Ring Hypo
The Scenario
- Propose marriage: “Will you marry me?”
- Give ring
- Acceptance of ring
- Post on Instagram
- Subsequently break up
The Legal Question
Who keeps the ring?
Traditional Gift Analysis:
- Was it a gift? (Intent + Delivery + Acceptance)
- “It was a gift! You gave it to me!”
Conditional Gift Theory:
- Ring given contingent on marriage
- Statement attached: “Will you marry me?”
- Acceptance with understanding of walking down the aisle
Factors to Consider:
- Who broke it off? (fault)
- Who cheated? (fault)
- Was ring a birthday gift? (could be unconditional gift)
- Value of ring (possibly relevant)
- Did parties marry? (condition fulfilled?)
Modern View (per casebook notes):
- Conditioned on party’s promise to legally marry
- If no marriage → ring returns to giver
- Unless giver explicitly said recipient could keep it
- Not a contract (special relationship exception)
Instagram Evidence: Extensive evidence of proposal on social media
Study Tips & Exam Guidance
Adverse Possession Exam Tips
Recognition Trigger:
- Question asks: “Who owns Blackacre and why?”
- Typically second or third call of the question
- Historically appears on second call
Common Student Errors:
- Professor gets “very substandard responses”
- Students must be “very careful”
- It’s on the final - “Like, it’s there! It’s on your final!”
Key Issues to Spot:
- Disability timing (existed at entry?)
- Tacking (privity between successive possessors?)
- Seasonal use vs. continuous
- Open and notorious (size of property matters)
- Good faith vs. majority view on hostility
General Exam Warnings
Easy Exams = Danger:
- If exam feels easy, “you’re getting screwed”
- Never think “I just got an A in property”
- Easy exams are easy for everyone = higher standard
- One sentence can make difference of full letter grade
Hard Exams = Better:
- If exam crushes you, crushes everyone
- Standard is much lower
- These exams yield better grades
Practice Essays:
- Available in packet
- Can submit for review weeks 9-10
- Conditions:
- Take your time
- No spelling errors (use spell check)
- Word document only (or handwritten PDF)
- Cannot do now (too early)
Coming Attractions
Next Week:
- Continue with Gifts (one case)
- Acquisition by Creation (quick lecture)
- Begin Estates in Land (professor’s favorite)
Warning about Estates:
- “The awful part, the part that they hate the most”
- Students historically have difficult time
- “Another dimension for next 5-6 weeks”
- Will take “baby steps”
- Must keep up with material
Key Takeaways
- Disability must exist at time of entry - most important timing rule
- No tacking of disabilities - cannot combine successive disabilities
- Tacking requires privity - formal instrument/transaction between adverse possessors
- State of mind irrelevant (majority view) - only matters if had permission
- Seasonal use can be continuous - if consistent with property character
- Open and notorious - property size matters for visibility
- Chattels - reasonable efforts test - true owner must actively search
- Gifts require intent, delivery, acceptance - delivery is usually the crux
- Constructive delivery - when actual delivery impractical/impossible
- Adverse possession punishes owners - for sleeping on their rights, not rewards trespassers
Important Distinctions
Tacking vs. Disability
- Tacking: Combines time periods of successive adverse possessors
- Disability: Pauses the statute for incapable true owners
- Cannot tack disabilities together
Good Faith vs. Majority Rule
- Good Faith (minority): Must believe property is yours
- Majority: Intent irrelevant, just need non-permissive possession
Actual vs. Constructive Delivery
- Actual: When you can physically hand over the item
- Constructive: When actual delivery impractical (car, land, large items)
- Default to constructive only when actual is impossible/impractical
Continuous vs. Abandonment
- Continuous: Seasonal use if consistent with property type, constant upkeep, intent to return
- Abandonment: Leaving with no intent to return, no upkeep, breaking possession
