Halpern v. Lacy Investment Corp., 259 Ga. 264 

Supreme Court of Georgia

1989

Chapter

38-39

Title

Adverse Possession

Page

808

Topic

Good Faith and Hostility are not legal equivalents.

Quick Notes

Halpern ask Lacy if he can purchase a parcel of land the backs up to his land.  Lacy refused, and Halpern clear and used it.  Halpern argues he was in hostile possession and claim of right are legal equivalents and therefore acquired the land by adverse possession. Jury found for Lacy and the Supreme Court of Georgia affirmed.

Rule

o         One must enter upon the land claiming in good faith the right to do so.

o         To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title.

Rule

o         One may maintain hostile possession of land in good faith.

Court - Holding

o         Most who have hostile possession of land do so with a good faith claim of right and therefore a jury or other factfinder may, in the absence of a contrary showing, infer from hostile possession that it is done in good faith that a claim of right exists.

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether a claim of right must be made in GOOD FAITH in order to satisfy the claim of right element of adverse possession of if the claim of right requirement is fully met by showing only of HOSTILE possession?   You have to show good faith.

Procedure

Trial

o         Jury rendered verdict for Lacy.

Supreme

o         Affirmed.

Facts/Cases

Discussion

Reasoning/Key Phrase

Rules/Laws

Pl - Halpern

Df - Lacy

Description

o          Lacy is a corporation and title holder of a parcel of land which Halpern claims to own by adverse possession.

Jury Verdict

o         Found against Halperns adverse possession claim.

o         Found in favor of Lacys counterclaim for slander of title and trespass and for expenses of litigation.

Land In Question

o         Located at the rear of Halpern's residential lot and is part of a large tract titled in Lacy's name. 

o         The Halpern lot was purchased in 1959 and a residence constructed on it in 1960.

o         There was evidence that at the time of construction the Halperns realized they would like the parcel in question to be a part of their backyard.

Halpern want to purchase, Lacy refused

o         Mr. Halpern, who is now deceased, offered to purchase the parcel from Lacy's predecessor in title but he refused to sell.

Halpern bulldozed, cleared, & used

o         Knowing they did not own the parcel, the Halpern's caused it to be bulldozed, cleared and included as part of their yard.

o         They have used it ever since

Courts Instruction to Jury

Good Faith Claim of right (Instructions to Jury)

o         Possession must be accompanied by a good faith claim of right.

o         A good faith claim of right may be evidenced by acts or conduct relating to the property which is inconsistent with the true owner's title.

o         A rebuttable presumption of a good faith claim of right may arise out of the dominion one exercises over the property.

Judge Draws Line and refuses Halpern

o         But he drew the line there and refused to give Halpern's request to charge that hostile possession is the legal equivalent of a claim of right.

Halpern contends

o          The charge and refusal to charge constitute error.

Court - We hold the trial court was correct.

Halpern relies on Ewing v. Tanner

Ewing v. Tanner

o         Hostile possession and claim of right "are, for all practical purposes, legal equivalents."

Chancey v. Ga. Power Co.

o         A claim of right will be presumed from the assertion of dominion.

Courts Opinion

Court - Rule

o         One must enter upon the land claiming in good faith the right to do so.

o         To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title.

Hannah v. Kenny

o         Such a person is called a "squatter."

In this Case

o         Here there was evidence that the Halperns knew the parcel of land was owned by another yet they simply took possession when their offer to purchase was declined.

o         There was evidence to support a finding that this possession never changed its character.

Rule

o         One may maintain hostile possession of land in good faith.

Court - Ewings Meaning

o         One may maintain hostile possession of land in good faith

Court - Holding

o         Most who have hostile possession of land do so with a good faith claim of right and therefore a jury or other factfinder may, in the absence of a contrary showing, infer from hostile possession that it is done in good faith that a claim of right exists.

o         As the trial court instructed the jury, the requirement of good faith claim of right may be evidenced by acts in relation to the property inconsistent with the true owner's title.

o         Hostile possession is such an act.

o         Ewing will not be construed to hold that good faith is not required.

Affirmed

Rules

Rule

o         One must enter upon the land claiming in good faith the right to do so.

o         To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title.

Rule

o         One may maintain hostile possession of land in good faith.

Class Notes