Adverse Possession Good Fatih, Bad Faith, Objective Test

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gdane
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Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby gdane » Mon Oct 10, 2011 8:15 pm

Hi everyone. I'm very confused about intent when it comes to adverse possession. In my class notes I have "Don't need good faith. Simply holding property in non permissive way is enough" and "Good faith and Bad faith irrelevant", but then I'm also reading about an "objective test" in which one has to look at how the adverse possessor acted toward the land.

The Property E&E seems to have confused me even more. Please help me understand what all this good faith and objective test stuff is about. Any help is greatly appreciated.

Thanks!

RPK34
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby RPK34 » Mon Oct 10, 2011 8:27 pm

This refers to the intent or "state of mind" of the party taking possession of the land.

Objective State: All that matters is that the person taking possession of the party intended to use the land as his own without permission. What you wrote down in as class notes seems to be the objective view. It's also the majority view of jurisdictions.
Good faith: Person must believe that the land they are using is their own
Bad Faith: Person must know that the land they are using actually belongs to someone else (most jurisdictions scrapped this, because the policy implications of it are pretty backwards).

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ph14
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby ph14 » Mon Oct 10, 2011 8:34 pm

gdane wrote:Hi everyone. I'm very confused about intent when it comes to adverse possession. In my class notes I have "Don't need good faith. Simply holding property in non permissive way is enough" and "Good faith and Bad faith irrelevant", but then I'm also reading about an "objective test" in which one has to look at how the adverse possessor acted toward the land.

The Property E&E seems to have confused me even more. Please help me understand what all this good faith and objective test stuff is about. Any help is greatly appreciated.

Thanks!


Basically there are two main schools of thought with regards to the intent requirement for adverse possession (which usually falls under the "adverse and under a claim of right category" depending on jurisdiction I believe). One is the "objective test," in which the defendant's state of mind doesn't matter, only his actions. His actions must look like he is claiming ownership. The other is the "subjective test" which encompasses both the "good faith" and "bad faith" tests. The good faith test requires the adverse possessor to mistakenly believe that he is only possessing his own land. Some jurisdictions require that the adverse possessor wouldn't claim the land if he knew it wasn't his. This is usually most commonly found in adverse possession cases involving border disputes between neighbors. The bad faith test requires the adverse possessor to know that the property is not his but intend to adversely possess it anyways.

target
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby target » Mon Oct 10, 2011 8:36 pm

RPK34 wrote:This refers to the intent or "state of mind" of the party taking possession of the land.

Objective State: All that matters is that the person taking possession of the party intended to use the land as his own without permission. What you wrote down in as class notes seems to be the objective view. It's also the majority view of jurisdictions.
Good faith: Person must believe that the land they are using is their own
Bad Faith: Person must know that the land they are using actually belongs to someone else (most jurisdictions scrapped this, because the policy implications of it are pretty backwards).


RPK is correct, but I want to clarify. The intent is only to prove "hostility." And both good faith and bad faith fall under subjective intent category as opposed to objective intent. HTH

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gdane
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby gdane » Mon Oct 10, 2011 8:46 pm

Thanks everyone.

I understand all this stuff better. Im going to go ahead and update my outline.

random5483
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby random5483 » Wed Oct 12, 2011 9:35 pm

Below is from my notes last year from the Singer book.




4) State of mind: Four approaches exist:
a) Lack of Permission (objective/majority rule): State of mind is irrelevant. All that matters is that the adverse possessor lacked permission from the true owner.
b) Claim of Right (subjective): Adverse possessor must allege a "claim of right." Can be met in most states by actual possession which basically makes it an objective test under a subjective guise. Some states require the adverse possessor to know where the border is and to intend to dispossess the true owner.
c) Intentional Dispossession: Adverse possessor must be aware that she is occupying property owned by someone else and must intend to oust or dispossess the true owner.
d) Good Faith: Only innocent possessors who mistakenly occupy property owned by someone else can acquire ownership by adverse possession .

dreakol
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby dreakol » Fri Oct 14, 2011 12:00 am

random5483 wrote:Below is from my notes last year from the Singer book.




4) State of mind: Four approaches exist:
a) Lack of Permission (objective/majority rule): State of mind is irrelevant. All that matters is that the adverse possessor lacked permission from the true owner.
b) Claim of Right (subjective): Adverse possessor must allege a "claim of right." Can be met in most states by actual possession which basically makes it an objective test under a subjective guise. Some states require the adverse possessor to know where the border is and to intend to dispossess the true owner.
c) Intentional Dispossession: Adverse possessor must be aware that she is occupying property owned by someone else and must intend to oust or dispossess the true owner.
d) Good Faith: Only innocent possessors who mistakenly occupy property owned by someone else can acquire ownership by adverse possession .


jesus christ

i cant believe how much this stuff differs between professors

random5483
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Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby random5483 » Fri Oct 14, 2011 12:38 pm

dreakol wrote:
random5483 wrote:Below is from my notes last year from the Singer book.




4) State of mind: Four approaches exist:
a) Lack of Permission (objective/majority rule): State of mind is irrelevant. All that matters is that the adverse possessor lacked permission from the true owner.
b) Claim of Right (subjective): Adverse possessor must allege a "claim of right." Can be met in most states by actual possession which basically makes it an objective test under a subjective guise. Some states require the adverse possessor to know where the border is and to intend to dispossess the true owner.
c) Intentional Dispossession: Adverse possessor must be aware that she is occupying property owned by someone else and must intend to oust or dispossess the true owner.
d) Good Faith: Only innocent possessors who mistakenly occupy property owned by someone else can acquire ownership by adverse possession .


jesus christ

i cant believe how much this stuff differs between professors



The information I provided was from the Singer casebook. My property professor basically adhered to the rules provided in that book.

dreakol
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Joined: Sat Nov 13, 2010 1:56 pm

Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby dreakol » Fri Oct 14, 2011 12:55 pm

random5483 wrote:
dreakol wrote:
random5483 wrote:Below is from my notes last year from the Singer book.




4) State of mind: Four approaches exist:
a) Lack of Permission (objective/majority rule): State of mind is irrelevant. All that matters is that the adverse possessor lacked permission from the true owner.
b) Claim of Right (subjective): Adverse possessor must allege a "claim of right." Can be met in most states by actual possession which basically makes it an objective test under a subjective guise. Some states require the adverse possessor to know where the border is and to intend to dispossess the true owner.
c) Intentional Dispossession: Adverse possessor must be aware that she is occupying property owned by someone else and must intend to oust or dispossess the true owner.
d) Good Faith: Only innocent possessors who mistakenly occupy property owned by someone else can acquire ownership by adverse possession .


jesus christ

i cant believe how much this stuff differs between professors



The information I provided was from the Singer casebook. My property professor basically adhered to the rules provided in that book.


ok

i can't believe how much this stuff differs between casebooks

random5483
Posts: 684
Joined: Sat Mar 20, 2010 8:17 pm

Re: Adverse Possession Good Fatih, Bad Faith, Objective Test

Postby random5483 » Fri Oct 14, 2011 8:41 pm

dreakol wrote:
random5483 wrote:
dreakol wrote:
random5483 wrote:Below is from my notes last year from the Singer book.




4) State of mind: Four approaches exist:
a) Lack of Permission (objective/majority rule): State of mind is irrelevant. All that matters is that the adverse possessor lacked permission from the true owner.
b) Claim of Right (subjective): Adverse possessor must allege a "claim of right." Can be met in most states by actual possession which basically makes it an objective test under a subjective guise. Some states require the adverse possessor to know where the border is and to intend to dispossess the true owner.
c) Intentional Dispossession: Adverse possessor must be aware that she is occupying property owned by someone else and must intend to oust or dispossess the true owner.
d) Good Faith: Only innocent possessors who mistakenly occupy property owned by someone else can acquire ownership by adverse possession .


jesus christ

i cant believe how much this stuff differs between professors



The information I provided was from the Singer casebook. My property professor basically adhered to the rules provided in that book.


ok

i can't believe how much this stuff differs between casebooks




Mild variations perhaps. From the gist of this thread, there are three main approaches: 1) Objective (actual possession without permission), 2) Subjective (intentional), and 3) Good Faith (mistaken or innocent possession). Not sure how the books vary all that much since all the rules seem to fall within this framework.

Bear in mind that there is no universal black letter law in many areas. The laws in any two states can and often are different. Property casebooks try to give you a rough breakdown of the law in various areas, but each of the books (or professors) often will have a slightly different focuses. This is one of the reasons why in many classes, students who rely on rules from the book or professor outperform those who rely on commercial outlines.




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