The Rule Against Perpetuities

What's law without a little whimsy? And what's possession without the ability for an adversary to relieve you of it?

The doctrine of adverse possession allows someone to claim property not their own. It has many justifications, but the concept is simple: the property goes to the one who values it most. Essentially you can claim property you do not own if you use it in the right way, and juuuuusssssttt the right way.

Three Common Justifications

It avoids stale claims. It is a statute of limitations on actions in ejections, which is helpful to a lawyer, but nonsense to those who actually want a reason why. Basically, we assume that if someone comes and claims your land and you can't be bothered to do anything about it for a long time (usually 10 years) then you made your bed and have to let this other person sleep in it. The law doesn't want a bunch of folk coming around and asserting claims based on old, unreliable evidence, so they limit the timeframe within which they can be brought.
It quiets title. The law cares about use. Courts prefer something be "used" instead of lie in waste. That is all nice and abstract but imagine, if you will, a business transaction. This business transaction requires everyone who owns part of this land to come forward so they can get paid. If it is too difficult or expensive (or just because...corporations are the worst kind of people) the business just won't do it and hope no one notices are just pay whatever they have to pay to make everyone go away. It's just easier and that counts for a lot.
It protects personal attachments. If your grandparent and their grandparent before them, and their grandparent before them built this cabin with nothing but an axe and a trusty blue ox, then you and your family are going to be attached to the place. It is family lore. The family doesn't want to find out that due to an error 100 years ago they actually don't own it. That would be unjust.

Generally courts decide when the timer starts by way of three different rules for personal property.

The conversion rule. Statute begins to go against the true owner as soon as the property is converted (taken or claimed)
The discovery rule. Statute begins against the true owner when the owner "discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action.
The demand rule. Statute beings to run once the true owner makes a demand for the property.

Note on disabilities

If you are 'disabled' at the time of entry it means what you think it means and more. What if the land owner is unable to eject the trespasser? You get 3 reasons and an extra 10 years if they are present.

Age of minority. Are you under 18? Then you can't act in your own legal capacity and are disabled in the eyes of the law.
Of Unsound Mind. ARE YOU CRAZY?! But for real...are you? If you are deemed of unsound mind you are disabled in the eyes of the law and when you become sane again...you get an extra 10 years.
Imprisoned. Pretty self-explanatory but keep in mind this only counts if you are in prison *at the time when the cause of action accrued.* If you were in jail when the trespasser came the law waits until you get out..then you get that 10 years.

What does it take to be an Adverse Possessor?

Adverse possession can be boiled down to 4 or 5 elements. Notice these elements are connected with the word AND. This is not a mere conjunctive and, but a logic AND. A AND B means both A and B must be true for the statement to be true.

Each of these 5 elements must be present for an adverse possession claim to be enforceable.

Actual Entry. You have to trespass. That's one of the main bits, you know? Because AP is really just saying you have 10 years to eject someone, they have to enter in order for you to eject them. If not, what are we doing here?
Exclusive Possession. You, the claimant, have to be the exclusive possessor the whole time. You can't share it with the true owner. If you're sharing it with the true owner then what are we doing here?
Open and Notorious. We have to assume that you were obvious enough about your presence that normal, reasonable landowners should have known you were there.
Hostile and adverse. IT SAID THE WORD. By "hostile" the law means against the true owner. By adverse the law means it doesn't know what it means and there's a bunch of case law about it.
Continuous and uninterrupted. You must be in possession the whole time.

Remember: A court will view these claims as a true owner would. How would the true owner use the land?

Adversity and State of Mind

The reason that an AP claim will most likely fail is the adversity requirement and the elusive state of mind Why is this? Well, prove you maintained the same state of mind for a period of 10 years. What does that mean?

The different ways in which a court will interpret state of mind are:

1. Objective Standard. The state of mind is irrelevant and all that matters is the conduct of the adverse possessor. Did the adverse possessor use the land the way a true owner would?

2. Good Faith Standard. "Oh? I thought I owned it!" This seems to only come up in America where we think that everyone ought to be done in good faith because we ignore history.

3. Aggressive Trespasser Standard. "Yeah I didn't own it but I was gonna make it mine, ya see?!"

But what if I was sold the land unlawfully?

You have color of title. If you have a defective deed then you have....some...claim. Your claim will be defeated by basically anything else. Constructive Possession

Important Adverse Possession Case Law

Fulkerson v. Van Buren

Folks find a church and start using it as a church. Being proud of their church the folks improved the land. Farmer who owns the land on which the church sits and thus the church itself, tries to eject the congregation. Congregation claims adverse possession. Lo and behold the court finds their *state of mind* lacking. They were not aggressive trespassers for the duration of the statute.

Hollander v. World Mission Church of Washington, D.C.

Family had thought they owned the disputed land for 15 years and had used it as a true owner for that time. Church filed for ejection and Hollander claimed adverse possession. What was the state of mind? Was their hostile, adverse intent? Court finds that because they based claim not only on the deed descriptions, but also on their belief that the property line ran to the woods. That shows adverse or hostile intent enough.

Howard v. Kunto

Kunto buys a vacation home and decides to build a deck. He hires a surveyor who discovers that the original survey was, uh, *quite* incorrect and all of the lots in the area were off by 50 feet. The deed that Kunto purchased described a lot 50 feet adjacent. Kunto's house wasn't on his lot so he claims adverse possession to quiet title. Trial court fails him, finds he doesn't meet the statutory time period--he bought the place only a few months ago. Appellate judge declares that they can tack! Kunto can combine the time the previous owners adversely possessed with his own. Also! Vacation homes get around the continuous use because their use is intended to be seasonal, at least according to the court.

O'Keeffe v. Snyder

The discovery rule! Georgia discovers some of her work that had been stolen many years before. The present owner had purchased them and claimed adverse possession. The statute had lapsed. Courts find in favor of O'Keefee, saying that the statute is tolled until she reasonably discovered the paintings. If you are wronged you generally get to start the statute when you discover the wrong, not when the wrong itself took place. The discovery rule applies to chattels.

Property Concepts - Rule Against Perpetuities