Reference no: EM133799290
In May of 1998, Smith buys a summer home on a one-acre lot near the Atlantic coast.
Smith's lot has access to a road, but no access to the beach. Smith's neighbor, Jones, owns an ocean front lot with beach access. Jones is out of town quite a bit, and the majority of the houses in the neighborhood are used only in the summer time.
During each summer, beginning in 1998 and continuing through 2010, Smith crosses Jones's property to access the beach. Smith has never met Jones and has not asked for permission to use Jones's property. In May 1999, without permission, Smith builds a small elevated walkway on Jones's property that connects Smith's property to the beach.
Occasionally, when walking across Jones's property, Smith leaves the walkway to enter Jones's overgrown garden, where Smith collects fresh blackberries and mint leaves for making blackberry mojitos. Smith does not maintain Jones's garden.
In May 2011, Jones returns to his lot and discovers Smith using the walkway. Jones brings an ejection action against Smith in court; Smith replies that he (Smith) is now the owner of the one-acre Jones lot.
You are a law clerk to the judge hearing this case. Your judge has asked you to write a memo discussing the issues raised by the parties. Assume that the relevant statute of limitations is 10 years and that the court applies the majority rule for claim of right/claim of title.
Elements to adverse possesion
(1) hostile (perhaps under a claim of right);
(2) exclusive;
(3) open and notorious;
(4) actual; and
(5) continuous for the requisite statutory period.
Explain using both IRAC AND CRAC formating: below are my notes
A claimant "maintains 'hostile possession' of property if the possession is under claim of right or with color of title." A "claim of right" may be established through proof of an honest but mistaken belief of ownership, resulting, for example, from a mistake as to the correct location of a boundary. The mistaken belief must be a "pure" mistake, however, and not one based upon "conscious doubt" about the true boundary. Furthermore, ORS 105.620(1)(b) requires that the claimants (or their predecessors) have had an "honest belief" of actual ownership that (1) continued through the vesting period, (2) had an objective basis, and (3) was reasonable under the circumstance.
Elements to prove in adverse possession:
(1) hostile (perhaps under a claim of right);
(2) exclusive;
(3) open and notorious;
(4) actual; and
(5) continuous for the requisite statutory period.