Daily Development for Tuseday, April 11, 2006
by Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel Blackwell Sanders Peper Martin
Kansas City, Missouri

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; “MIND OF A THIEF” A claim of adverse possession will not be defeated even though the adverse possessor had knowledge of the invalidity of title to the adversely possessed property. 

Walling v. Przybylo, 804 N.Y.S.2d 435 (A.D. 3 Dept. 2005).

Plaintiffs brought a quiet title action to affirm their adverse possession of the neighbor’s property.  They established that they had improved and occupied their neighbor’s property for the statutory period.  

The trial court first granted plaintiffs’ motion for summary judgment and then reversed itself following a submission by the defendant neighbors offering to prove that  when plaintiffs acquired their property, they were informed that a certain portion of the land lying between their home and their neighbor’s home did not belong to them, but to their neighbors.

On appeal Held Reversed.

The New York appeals court held that it did not matter whether the plaintiffs were occupying property they knew belonged to another - in short, plaintiffs could have the “mind of a thief.”  Still, adverse possession would run.

The court held that the in order to meet the “hostile” requirement of adverse possession, the adverse possessor simply must not acknowledge the true title holder’s rights in the property; it did not matter whether the adverse possessor had knowledge of the fact that he may not have title to the adversely possessed property, only that he did not recognize any such right. 

“This question was resolved in New York State as long ago as 1840.  In Humbert v. Trinity Church [1840] . . . the court held that ownership can be obtained by adverse possession even where the possessor claims title wrongfully, fraudulently and ‘with whatever degree of knowledge that he has no right. . . . .  The court’s ruling in Humbert, that the ‘quo animo’ (intent) required of an adverse possessor is ‘the intent to claim at all, right or wrong, with or without knowledge that another had title’. . . was an explicit rejection of its earlier view . . . that the possessor had to have a good-faith belief in his or her ownership.”   

This view reflects what the court viewed as the fundamental notion of adverse possession - the barring of the claim of ownership for failure to defend.

The court went on to emphasize that the New York rule also rewards adverse possessors who possess by mistake, not intending to occupy the land of another, but doing so in the belief that they own the land.  Their action, not their belief, is controlling.

In reaching this conclusion, the court repudiated dicta in a 1952 New York Court of Appeals case suggesting that the “mind of a thief” would not avail to establish adverse possession.  The case thus distinguished, Van Valkenburg v. Lutz, 106 N.E. 2d 28 (1952) is one that the editor has seen cited in some Property casebooks, so it is significant that this case tries to marginalize it.

Comment 1  Of course, the court does not say anything to suggest that a belief of permission would not be significant.  To this degree, the mind of the adverse possessor remains relevant in New York, presumably.

Comment 2 The case is so “clean” in the position that it takes that it would be a great case for a set of teaching materials.  But it stands for only one point of view in American law.  Many other courts take the position, sometimes regarded as a more modern approach, that the adverse possessor “builds his title” by affirmative acts of possession, rather than that the doctrine punishes inaction by the true owner. 

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