adverse possession exam question

[Mozart711]

I've been going back and forth on my Property exam answer on adverse possession...here is the hypo:

There are two lots, Lot 1 and Lot 2. The conveyance to X was for Lot 1 and accidently conveying Lot 2. X possesses Lot 1 without ever occupying Lot 2. Under Color of Title, X cannot claim any right over Lot 2 since he never actually occupied. I understand that under constructive possession, if X were to occupy a part of Lot 2, then he could claim all of it. However, since he did not actually occupy any part of Lot 2, even under Color of Title, he cannot claim a right over it, correct (I hope)?

[Felsen]

If I'm reading your statements correctly, Lot 2 was conveyed to X in a (presumably) deed.  Whether it was accidental or not, it was conveyed. 

There is no adverse possession in what you have described.  If someone else was occupying Lot 2, then you start getting into an adverse possession issue.  X does not have to occupy Lot 2 if it was conveyed to him.

So X has a claim over Lot 1 and Lot 2, unless someone else establishes an adverse possession claim or Bona Fide Purchaser claim (if you want to worry about recording acts).

Of course, our property class didn't ever go over anything called "Color of Title."

[Mozart711]

Thanks for your help. I thought that because Lot 2 was accidently conveyed, and X never actually occupied the property, he would have no right to claim it as his own. This is where the color of title aspect would play its part. Color of title is when a grantor, usually by accident, conveys property and the grantee may occupy part of that property or all of it, and since they did occupy it for the statute of limitations period (usually shorter under color of title), they may then have an adverse possession claim over that property. So, since this deed was under color of title, and the element, actual, of adverse possession was missing here (possibly the element of open and notorious is missing too since X did not occupy the property, nobody was put on notice of his possession), X wouldn't have a claim of right over Lot 2. I don't think a claim of right over the property hold be upheld for the sheer fact that it was conveyed by accident, if absolutely no possession was present. Does this make sense?

 

If I'm reading your statements correctly, Lot 2 was conveyed to X in a (presumably) deed.  Whether it was accidental or not, it was conveyed. 

There is no adverse possession in what you have described.  If someone else was occupying Lot 2, then you start getting into an adverse possession issue.  X does not have to occupy Lot 2 if it was conveyed to him.

So X has a claim over Lot 1 and Lot 2, unless someone else establishes an adverse possession claim or Bona Fide Purchaser claim (if you want to worry about recording acts).

Of course, our property class didn't ever go over anything called "Color of Title."

[mcleod13]

I could be wrong as my brain has just started re-solidifying again after finals. But I thought that lot 2 was conveyed, and assuming there is nothing wrong with the Deed, there would be no color of title but good title to lot 2. Now, adverse possession would be running as against the true owner of lot 1.

But also, it would also depend on if there was an actual true owner (besides the grantor) of lot 2. Because, if there was a true owner of lot 2 then he would have to take possession of lot 2 and stay there for required time. I see it as this, another owner of lot 2 = color of title, not another owner = good and clear title.

[Mozart711]

Lot 2 was conveyed, but it was accidently conveyed. The conveyance was supposed to be only for Lot 1. I guess we can simplify the issue to whether a grantee can have a claim of right over a lot of property if it was accidently conveyed BUT never actually occupied by the grantee.

I could be wrong as my brain has just started re-solidifying again after finals. But I thought that lot 2 was conveyed, and assuming there is nothing wrong with the Deed, there would be no color of title but good title to lot 2. Now, adverse possession would be running as against the true owner of lot 1.

But also, it would also depend on if there was an actual true owner (besides the grantor) of lot 2. Because, if there was a true owner of lot 2 then he would have to take possession of lot 2 and stay there for required time. I see it as this, another owner of lot 2 = color of title, not another owner = good and clear title.

[J D]

Lot 2 was conveyed, but it was accidently conveyed. The conveyance was supposed to be only for Lot 1. I guess we can simplify the issue to whether a grantee can have a claim of right over a lot of property if it was accidently conveyed BUT never actually occupied by the grantee.

I could be wrong as my brain has just started re-solidifying again after finals. But I thought that lot 2 was conveyed, and assuming there is nothing wrong with the Deed, there would be no color of title but good title to lot 2. Now, adverse possession would be running as against the true owner of lot 1.

But also, it would also depend on if there was an actual true owner (besides the grantor) of lot 2. Because, if there was a true owner of lot 2 then he would have to take possession of lot 2 and stay there for required time. I see it as this, another owner of lot 2 = color of title, not another owner = good and clear title.

It's been a while since property class for me, but I think I'd want to know more facts which could make the approach to the problem simpler.  First, just to be clear, the question is whether the grantee is adversely possessing the lot he was in fact conveyed by mistake, correct?  Well, if so, that seems weird, considering that he's the record owner of Lot 2, right?  Usually, the record owner has no need to claim adverse possession, since he can rely on the fact that the deed has his name on it to establish ownership (unless there's been a fire at the registry of deeds or something).  I guess he'd want to rely on adverse possession, also, since his title to Lot 2 is basically voidable, subject to rescisssion (and probably a claim in restitution) when the grantor learns of his mistake. 
 
Also, making some typical factual assumptions (i.e., that nobody knows of the mistake until essentially the time of the lawsuit, as seems to be the case in a lot of mistake cases; still I'd want to know more), it seems unlikely the adverse possession claim would succeed, since it's unlikely the grantee has made actual, owner-like use of Lot 2.  This is what I'd want to know more about: has he acted like an owner with respect to Lot 2?  Did he put a fence up around it?  Did he put any fixtures on it, like a toolshed, a birdbath, a swing set?  Did he cut the grass on it?  Did he give permission for anyone else to do such things?  I don't see why he would unless he knew of the mistake and chose not to tell the grantor, and even were that the case, in the real world, wouldn't it be more likely that the grantor (unless he's absent or something), would see grantee cutting the grass, and say "what are you doing? This is my land."  Then he'd probably learn of the mistake and seek restitution/rescission.  All of this would likely take place well within the adverse possession statute of limitations (which can be as long as 20 years in many states).

I'd like to know more, because the problem as given doesn't quite make sense to me.     But I think your instincts, i.e., examining whether there was actual possession/use, are right on. 

[Mozart711]

Okay, I agree with your statement that he would not necessarily need to rely on adverse possession since the mistaken title has both Lots listed. I think your questions made me realize where I kept trippng up on this problem. I believe (and hope) that my exam question asked if X had a claim over Lot 2 under adverse possession. This is where I stated that he probably would not because of my arguments listed prior to this posting. I really hope that the question addressed adverse possession or else I missed the issue that you raised. Thanks for the help.


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It's been a while since property class for me, but I think I'd want to know more facts which could make the approach to the problem simpler.  First, just to be clear, the question is whether the grantee is adversely possessing the lot he was in fact conveyed by mistake, correct?  Well, if so, that seems weird, considering that he's the record owner of Lot 2, right?  Usually, the record owner has no need to claim adverse possession, since he can rely on the fact that the deed has his name on it to establish ownership (unless there's been a fire at the registry of deeds or something).  I guess he'd want to rely on adverse possession, also, since his title to Lot 2 is basically voidable, subject to rescisssion (and probably a claim in restitution) when the grantor learns of his mistake. 
 
Also, making some typical factual assumptions (i.e., that nobody knows of the mistake until essentially the time of the lawsuit, as seems to be the case in a lot of mistake cases; still I'd want to know more), it seems unlikely the adverse possession claim would succeed, since it's unlikely the grantee has made actual, owner-like use of Lot 2.  This is what I'd want to know more about: has he acted like an owner with respect to Lot 2?  Did he put a fence up around it?  Did he put any fixtures on it, like a toolshed, a birdbath, a swing set?  Did he cut the grass on it?  Did he give permission for anyone else to do such things?  I don't see why he would unless he knew of the mistake and chose not to tell the grantor, and even were that the case, in the real world, wouldn't it be more likely that the grantor (unless he's absent or something), would see grantee cutting the grass, and say "what are you doing? This is my land."  Then he'd probably learn of the mistake and seek restitution/rescission.  All of this would likely take place well within the adverse possession statute of limitations (which can be as long as 20 years in many states).

I'd like to know more, because the problem as given doesn't quite make sense to me.     But I think your instincts, i.e., examining whether there was actual possession/use, are right on. 
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[J D]

It's probably about adverse possession, since talking about mistake and restitution would, I would think, go beyond the normal scope of property class.  That's more the bailiwick of the law of contracts and/or restitution, I believe.

Okay, I agree with your statement that he would not necessarily need to rely on adverse possession since the mistaken title has both Lots listed. I think your questions made me realize where I kept trippng up on this problem. I believe (and hope) that my exam question asked if X had a claim over Lot 2 under adverse possession. This is where I stated that he probably would not because of my arguments listed prior to this posting. I really hope that the question addressed adverse possession or else I missed the issue that you raised. Thanks for the help.

It's been a while since property class for me, but I think I'd want to know more facts which could make the approach to the problem simpler.  First, just to be clear, the question is whether the grantee is adversely possessing the lot he was in fact conveyed by mistake, correct?  Well, if so, that seems weird, considering that he's the record owner of Lot 2, right?  Usually, the record owner has no need to claim adverse possession, since he can rely on the fact that the deed has his name on it to establish ownership (unless there's been a fire at the registry of deeds or something).  I guess he'd want to rely on adverse possession, also, since his title to Lot 2 is basically voidable, subject to rescisssion (and probably a claim in restitution) when the grantor learns of his mistake. 
 
Also, making some typical factual assumptions (i.e., that nobody knows of the mistake until essentially the time of the lawsuit, as seems to be the case in a lot of mistake cases; still I'd want to know more), it seems unlikely the adverse possession claim would succeed, since it's unlikely the grantee has made actual, owner-like use of Lot 2.  This is what I'd want to know more about: has he acted like an owner with respect to Lot 2?  Did he put a fence up around it?  Did he put any fixtures on it, like a toolshed, a birdbath, a swing set?  Did he cut the grass on it?  Did he give permission for anyone else to do such things?  I don't see why he would unless he knew of the mistake and chose not to tell the grantor, and even were that the case, in the real world, wouldn't it be more likely that the grantor (unless he's absent or something), would see grantee cutting the grass, and say "what are you doing? This is my land."  Then he'd probably learn of the mistake and seek restitution/rescission.  All of this would likely take place well within the adverse possession statute of limitations (which can be as long as 20 years in many states).

I'd like to know more, because the problem as given doesn't quite make sense to me.     But I think your instincts, i.e., examining whether there was actual possession/use, are right on. 
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