Wednesday, April 9, 2014
Luke Meier (Baylor) has posted A Contextual Approach to Claim of Right in Adverse Possession Cases: On Van Valkenburgh v. Lutz, Bad Faith, and Mistaken Boundaries (Lewis & Clark) on SSRN. Here's the abstract:
This Article shows that, in adverse possession disputes, a uniform approach to the claim of right inquiry can produce undesirable results. To reach the desired result in one type of adverse possession case, a court might be forced to adopt a particular approach for determining whether the possessor had the required state of mind (“claim of right”). In a different type of adverse possession case, however, using this same approach might produce a result that the court finds objectionable. Thus, to reach the desired outcome for each type of adverse possession case a court must resolve, a court might be compelled to adopt a different test for measuring the possessor’s state of mind. This Article suggests that much of the confusion regarding the claim of right inquiry can be attributed to a failure to recognize the analytical point made herein — namely, that a uniform approach to the claim of right inquiry will often be problematic. Recognizing that adverse possession arises in factually distinct contexts — and accepting that different rules could apply in each of these contexts — should resolve much of the confusion associated with the claim of right inquiry.