美国财产法(6)

at 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, u

ninterrupted 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 no

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