Howard v. Kunto (1970) (tacking of adverse possession)

a.       Facts- D owned a plot of land adjacent to P. Properties in question are believed to be summer homes. D’s title mistakenly reports the actual lot, meaning D is living on the wrong lot, which is actually P’s property. When P tries to convey title to a buyer, P realizes that D has been living on P’s property. P sues D on two issues under adverse possession theory. D claims adverse possession. The Ct analyzes the requirements of adverse possession.

b.      Procedural History- Trial Ct finds for P, Ct of Appeals reverses for D.

c.       Issue-

                                                              i.      Whether using the summer house ONLY during the summer defeats a claim of adverse possession, AND

                                                            ii.      Whether a person who mistakenly believes they own land and then possesses it can “tack” on the previous owner’s term of occupancy for the sake of establishing adverse possession

d.      Holding- No, a claim of adverse possession is NOT defeated by someone who ONLY uses a summer house during the summer. Yes, a person who mistakenly receives title and possesses land CAN “tack” on the previous owner’s term of occupancy for the purpose of establishing adverse possession.

e.       Rule-

                                                              i.      To fulfill “continuity” requirement for adverse possession, the adverse possessor MUST possess the land as the true owner would. “Breaks” in the continuity do NOT necessarily defeat an adverse possession claim.

                                                            ii.      “Tacking” can ONLY happen when privity between current and previous possessor is established.

f.       Rationale-

                                                              i.      The adverse possessor must use the property as the owner (or people with similar property) would have used it. For adverse possession, a hunting lodge may be used ONLY for the hunting season, and a summer house may be ONLY used for the summer months.

                                                            ii.      To “tack” time for the purpose of adverse possession, privity must be present. Privity is a “personal connection with the previous land owner in the transfer of property”

g.      Notes:

                                                              i.      Statute of limitation is 10 years for ad poss. If A ad possession land for 5 years, leaves, then B adverse possession the land for the remaining 5 years, adverse possession is NOT established unless privity between A and B is established.

                                                            ii.      This case required “good faith”. This case was overturned in 1984 to the extent of the “good faith” requirement.

                                                          iii.      What if hippies occupied the land and ONLY camped…and did NOT leave anything behind?

1.      USE function: Camping is NOT enough…you must make good USE from the land

2.      NOTICE function: Camping IS enough…all you need is to give NOTICE to everyone else to alert them that you are the owner

3.      Look to other owners of similar properties…what would the owner do?

4.      Show it as the “true owner” would

                                                          iv.      Privity

1.      must be established to “tack” 2 statute of limitations

                                                            v.      Why would we NOT give the rights to a final squatter in a succession of squatters? (assuming NO squatters were in privity)

1.      Is it because of their relationship, or because they would have an expectation?

a.       We don’t care about protecting the rights of the last squatter…the Reliance argument doesn’t work

b.      We want to protect the rights of someone who “really thought” they bought something…they thought this partly because of privity. They thought they were getting legal title

                                                          vi.      How does the Ct move away from privity of estate? ...and goes into a looser standard

1.      When you have a strict standard that you don’t want to apply…you can generalize. Ask, why do we have privity?

2.      Ct says: “Privity” is not the standard, reasonable connection is the standard.

3.      Privity may be relaxed when technically there is no privity, we must look at the “reason” of the privity (the rule). The “reasoning” is the rule, and the rule is the manifestation of the reasoning.

4.      POLICY for tacking:

a.       Reliance interest in adverse possessor

b.      Lack of diligence of property owner (Sleeping of their rights)

5.      POLICY for NOT tacking:

a.       NOT about owner Sleeping on rights

b.      But the merits of the adverse possessor…focus on the expectation interest in the adverse possessor

6.      Was the D “open and notorious”?

a.       Yes, building a house on the wrong block is pretty open and notorious

b.      We cannot apply the logic from the Manilo case, because Manilo is only confined to “small encroachments”