Ⅰ Legal Information

美国财产法(4)    （作者：佚名）    <注：本期刊登第四部分，余下部分请继续关注>

3.4 Adverse Possession

Adverse Possession意译为时效占有,也可以译为相反占有。时效占有也是取得财产所有权的一种方法,是指无法律根据而占有他人财产者,根据法律规定的时间在一定条件下取得此项财产的所有权,财产所有人在法定的期限内不行使权利即被丧失收回其财产的诉讼权利,所以有美国学者称时效占有为法律认可的小偷（Legalized Theft）,时效占有须具备一定的条件（Requirements of Adverse Possession）:

1. Actual entry（实际占有,对标的物施以事实上、物理意义上的直接控制和管领）；
2. Exclusive possession（唯一占有,也可以称为排他占有）；
3. Open and Notorious（公开占有,是说这种占有必须是公开的,众所周知的和可见的）；
4. Continuous uninterrupted possession（持续占有）。
5. Statutory period（占有所持续的时间已经达到法律所规定的时效,时效又可译为statue of limitations）。

Adverse Possession

A. Theory of adverse possession is that if within the number of years specified in the statute of limitations, the owner of land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action in ejectment and the adverse possessor gains title to the land. If a man neglects to enforce his rights he looses them.

-rationale is that an owner should be keeping a good eye on his property and that if someone comes and take possession of it, it is his fault, by virtue of the owner' absence he has legally forfeits his rights.

-burden is placed on land owner to attend to check for squatters, eject any trespassers, and go to court if can't get them out through self-help.

-government land generally exempt from adverse possession under theory they couldn't watch over lands like a private owner should.

- modern trend is to shorten the period of adverse possession.

D. Adverse possessor before acquiring title can evict a subsequent possessor because she is a prior possessor and has title superior to all, but the true owner. She can transfer her property interest, possession, to another in tacking. However, she had no interest in the property against the true owner.

E. Requirements of Adverse Possession: an adverse possessor must show 1) an actual entry; 2) giving exclusive possession that is; 3) open and notorious; 4) adverse and under a claim of right; 5) continuous for the statutory period.

1）Actual entry is necessary to begin the cause of action and start the statute of limitations running.

-if someone actually enters part of the land described in a deed, the possessor may be deemed in constructive possession of the rest, but have to show actual entry of some part of the land.

2）Exclusive possession, adverse possessor must not be sharing possession with the owner nor with the general public; idea is that if the adverse possessor was sharing possession with the owner or someone else the owner may not realize that the adverse possessor was claiming ownership against him.

- It is possible for two or more persons living together to acquire title by adverse possession as tenants in common.

3）Open and Notorious, the adverse possessor must occupy the property in such as way that an attentive and reasonable land owner would know that someone was occupying the land and claiming possession. There is not actual notice requirement, but the idea is to give the owner a chance to defend his property rights.

• acts have to resemble those of an owner of the property, community observing those acts would infer that the actor was claiming ownership.
• the type of act required depends on the type of property involved, must resemble that of the owner, so if farm land need to cultivate, wild land need to hunt on it and build cabin, city dwelling need to put up a fence etc.
• Each state may develop statutory requirements in addition to the usual requirements to claim land through adverse possession. Some require color of title, some, like N.Y, specify that if there is not color of title adverse possessor must have substantially enclosed land, and cultivated and improved it. Common law didn't require that land be put to good use, but some statutes require it.

4）Adverse, under a claim of right, possession must be without the owner's consent (sometimes referred to has hostile, but does not refer to any animosity). Adversity is meant to assure that owner knows of a possessor's claim to assert title, claim of right. Further requirement, beyond lack of consent, for adversity depend upon statutory additions and whether court applies an objective or subjective (good faith/bad faith) test.

• Objective Test: Majority view that the state of mind of the possessor is irrelevant, adversity is determined by   actions, whether or not he is occupying the land without the permission of the owner. If adverse possessor looks like he is claiming ownership, and the community would view him as such then the claim is adverse.

- Under objective test someone can gain title through adverse possession even though not actually calming title against true owner if actions indicate as that he is occupying the land as if he was the owner.

• Subjective Test: The state of mind or intent of the adverse possessor is evaluated to determine adversity, could be either good faith or bad faith test. Criticized because it encourages people to lie on the witness stand either to claim honest mistake or malicious intent, it's irrelevant in objective test.
• Good Faith, adverse possessor honestly believes that he has title to the land and that his possession is not adverse.

- Many states require an act of good faith, even those claiming to adopt an objective standard. A possessor acting under an honest mistake is holding adversely, but a person who knows the land is not his and occupies it with bad intentions should not gain title to someone else's land.

- California overtly requires good faith, plus payment of property taxes.

• Bad Faith (aggressive trespass standard) adversity possessor must know that he does not have title and still intend to occupy the land and claim ownership anyways. This is small minority view.

- some states say （at least in boundary disputes） that if possessor mistakenly believes he has title, but would not claim title if he knew the truth, that he is not occupying adversely.

- criticized for rewarding intentional wrongdoing and punishing those who made honest mistakes.

-even if not required, paying taxes is a good indication of a claim of right

• Color of Title is a claim based on a written instrument （such as a deed or a will）, or a judgment or decree which, unknown to the claimant, is defective, and invalid. This arises when the grantor of the deed does not actually own the land he deeded, when the grantor is mentally incompetent, or when the deed is improperly executed.

- Color of Title is proof of adversity in and of itself, it is a prima facie case for claim of right, it thus reduces the burden and thus makes attaining land through adverse possession easier.

- Most states require that grantee takes possession without knowledge of the defect and must hold the faulty deed in good faith.

- Most states don't require color of title, even in good faith requirement states, oral transfer can constitute honest claim of title.

• Constructive adverse possession is a major advantage of color of title in all states. The idea is that if a possessor enters part of the land to which he thinks he holds title and satisfies all the elements of adverse possession on that portion, he can claim constructive possession over the rest. Without color of title can only gain title to the land you are actually occupying, with it one can claim the whole deed.

- The land has to be occupied in reasonable proportion to the total deed, if occupy tiny fraction can't claim whole property through constructive possession.

- If two adverse possessors occupy opposite ends of land and the prior possessor occupies under color of title, he can eject the subsequent possessor because he was constructively there first.

- There are limits to the power of color of title. If an adverse possessor is occupying one end of a property under color of title and the true owner is occupying the other end, TO will get part he is occupying and middle area because TO's deed is valid and was there first.

• Boundary disputes often involve adverse possession when a neighbor mistakenly believes a strip of land along an adjoining boundary to be his and openly and notoriously occupies it. Majority of states apply an objective test, some apply subjective （bad faith） requirements for boundary disputes.

-Objective test in boundary disputes say possessor's mistake or state of mind is irrelevant, if it appears to the community that he is claiming ownership and does not have permission of the true owner, than he is possessing adversely and has a claim of right.

-Maine doctrine, Subjective test, say that if possessor is mistaken as to where the boundary is and would not have occupied or claimed the land if he had known the accurate line, then the possessor doesn't have the intent to occupy adversely, bad faith test in which intent matters.

- If neighbors make an oral agreement about a disputed boundary line, the agreement is enforceable, though not as a conveyance

- Long acquiescence, though it may be shorter than the statute of limitations, can be held as an agreement over a boundary line

- Estoppel says that if one neighbor makes positive representations about a boundary line or remains silent, and the other neighbor relies on such representation （Ex. spends lots of money ）, then the first neighbor can't change his mind and claim another boundary line.

5）Continuous, uninterrupted possession throughout the statutory period requires only a pattern of occupation similar to the type of an average owner of that particular property. Adverse use can be deemed uninterrupted even though there are periods where the possessor is absent if the adverse state of mind continues.

• Seasonal use can satisfy the continuous requirement as long as a normal owner would use the land in that way.   Howard v. Kunto, a summer home only needs to be occupied during the summer for the length of statutory period. Same applies for seasonal use of hunting cabin or grazing land.
• Abandonment is the intentional relinquishment of possession, if possessor abandons for any length of time without intent to return, continuity is lost and statute of limitations starts all over again should she return.
• Tacking by successive adverse possessors satisfies continuous possession for the statutory period. One can tack onto his own period of adverse possession any period of adverse possession by predecessors in interest, but there must be privity of estate between the adverse possessors. Howard v. Kunto with house that were one lot off.

-Privity of Estate means that a possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession （ a reasonable connection between new and previous possessor）. If the transfer is not voluntarily, i.e. one possessor ousts another possessor there is no privity of estate and tacking is not allowed.

-privity is required because courts feel adverse possession should be awarded for meritorious conduct and ousting someone is not

-Tacking is not permitted where one adverse possessor abandons the property and another enters immediately, there is not privity of estate because the transfer was not voluntary

-Re-entry by adverse possessor who was temporarily ousted picks up the statute of limitations where it left off. The possessor can tack on her prior possession, but not the period in which she was ousted, because during that time the owner did not have a claim against her.

Tacking runs on the owner's side once adverse possession has begun the statute of limitations runs against the owner and all of his successors in interest. Gives advantage to the adverse possessor.

两个与Adverse possession有关的经典案例:

1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94

Facts: AA-appellee sought to sell half of his waterfront land to another party, and so had a survey performed to determine the exact lay of his property. When the survey was performed, however, it was found that the previous surveys, which were used for determining the deeds that were recorded for each plot in the neighborhood, were in error by 50ft. Thus, each lot that was occupied actually belonged in deed to the person's next-door neighbor. BB-appellant occupied a house on property that was described in the deed acquired by AA-appellee, who sued for recovery of the land described by the deed. BB contended that a long string of previous occupiers of the house adverse to AA constituted a new title in BB.AA argued that BB could not tack his adverse possession time onto that of his predecessors because it was only a summer house, and therefore not "continuously" occupied, and that the chain of possessors was not in "privity" because the deed was to the wrong tract of land. Trial court ruled for AA, BB appealed.

Issue: 1. Is a claim of adverse possession defeated because the house was only used as a summer property？2. Can a person who has recorded title to a tract of land adjacent to his, but thinking that he has correct title to the land which he possesses, tack his adverse possession onto the previous periods of occupancy which went before his？

Holding: 1. No. To establish continuity of possession, a person must only occupy the property for periods of time which are consistent with the nature of the property. 2. Yes. Where there are several successive bona fide purchases and recordings of a deed to a tract of land adjacent to the tract of land occupied, and the cumulative possessions are longer than the statute of limitations for actions to recover property, there is sufficient privity to permit tacking and thus establish adverse possession.

Reasoning: 1.The court reasoned that the rule of continuity was not one requiring absolute mathematical continuity, but rather if the land is occupied during the period of the year when it is capable of use, that is sufficient. 2. The requirement of "privity" is intended to keep chains of unrelated squatters from voiding the title of the original owner, and clearly those are not the facts in this case. Each possessor was a bona fide purchaser from the previous one. Furthermore, where a person claims more than his deed describes, the question of privity is not defeated, so it should be the same for where the deed describes an adjacent parcel of land.

Notes: 1. The privity requirement can be fulfilled by a relation between disseisors of grantee/grantor, ancestor/heir, or devisee/devisor. Possession need not be directly by the disseisin, but may be by someone authorized by him. 2. A possessor can claim title to a land which he occupied for the statutory period under the mistaken belief that it was his own, even though he may not have muniment of title. 6. Most statutes have disability clauses that extend the period required for adverse possession if the owner is a child, insane, incompetent, etc. However, there can be no tacking of disabilities, the statute runs with any change in ownership. 7. There has been opinion recently that the disability clauses should be removed because they prevent some cases from being settled in a reasonable time when there is clearly no opposition from the disabled land owner. The theory is that the disabled persons relatives/friends will look out for him, and the occasional loss will be offset be the increased security against latent claims by disabled persons suddenly being brought forward.

2. O'Keeffe v. Snyder （1980）； pg. 145, briefed 9/27/94

Facts: O'Keeffe is the painter who painted several paintings that she claims were stolen from her studio in 1946. She did not advertise that they were missing until 1972 when she registered them as stolen with an Art Dealers Association. Snyder bought the paintings in question in 1975 from a dealer who claims that they were in his family since perhaps as early as 1941-1943（before the claimed theft）。 O'Keeffe discovered the paintings in Snyder's gallery in 1976 and instituted an action of replevin to recover them. Snyder claims both that the statute of limitations for replevin of chattels had run, and that he had held the paintings in adverse possession, through tacking with the dealer's family, for over 30 years. Trial court issued summary judgment for Snyder, holding that the statute of limitations had commenced running on the date of the original theft. Appellate court reversed and entered judgment for O'Keeffe holding that Snyder had not proven the elements of adverse possession.

Issue: Who has best title to the paintings？

Holding: 1. Unlike in real estate adverse possessions, in cases involving personal chattels, a cause of action will not accrue, and thus the statute of limitations will not begin to run, until the injured party discovers, or by reasonable diligence should have discovered, facts which form the basis of the action. （Discovery Rule）.

Reasoning: 1. The literal language of the statute of limitations results in harsh holdings when the property in question is one which is easily concealed, or its display is not visible broadly enough to put the owner on sufficient notice of the identity of the possessor （analogy to jewelry worn）. It would encourage larceny to hold that the strict letter of the statute would prevent the owner from recovering an item of which he never knew the identity of the possessor. 2. Before the statute runs out, the possessor has a voidable title against all others but the true owner. To leave the title in the original owner after adverse possession would not put issues to rest that were deserving of resolution because of their age and action of the owner. 3. Not to permit tacking would enable the original owner to have rights much longer than the statute of limitations, and put a subsequent buyer in a worse position than the person who took it wrongfully in the first place.

网友方明译:

这两篇好难翻译呀,硬翻了翻,欢迎大家一起探讨！

1. Howard v. Kunto （1970）； pg. 1393, briefed 9/19/94

案情: 被上诉人AA为了将一半属于自己的临水土地卖给他人,对所属土地的位置进行了一次准确测量。然而,测量结果出人意外:其地契所依据的前次测量存在错误,在于邻居相连的每一单位土地上都有50英寸的误差,也就是说标明在地契上的这些单位的土地,实际上应归其邻居所有。而上诉人BB有一套房屋却位于被上诉人AA地契所标注的土地上,于是AA起诉要求恢复行使地契上的土地权利。BB提出主张,认为长期占有该房屋已经构成了自己的一项新权利。AA提出反驳,BB在时间上不符合先占时效,理由是该房屋仅仅是避暑别墅,不能构成连续占有。而且,这种连续占有不因为地契有误而构成一种“默示”。法庭判决AA胜诉,BB因此上诉。

问题:1.仅仅因为这套房屋是避暑别墅就能使时效先占的主张败诉吗？2.对于相邻的有契约记载的土地,如果认为自己是合法拥有者而占有该土地,那么能不能形成对该土地时效先占呢？

裁决:1.不能。对于连续占有的构成,只要占有财产的时间与该财产的一般用途相一致即可。2.能。如果一个相邻的土地,其上存在几个连续的真实交易,且有契约记载,持续被占有超过法令规定的诉讼时效,并且有充分的占有默示,那么这就构成了时效先占。

分析:1.法庭充认为连续占有规则并不是要求绝对精确的连续,而是只要该土地在一年中能够使用的期间被占有,这就足够了。2.“默示”要求有意排除交易链中的无关方,以避免使原所有人权利无效,并且表明在此种情况下的不实之处。每一个土地现持有者都是前持有者的正当购买人。此外,如果有人主张地契记载之外的土地,默示成立的话,那么对于地契记载的相邻土地,默示也应当成立。

注解:1.默示的要求可以通过受让人/被受让人、被继承人/继承人、接受遗赠人/遗赠人中的抢夺者之间的关系来实现。占有不必直接去侵占,通过 授权人也可以。2.即使没有土地所有权凭证,占有人仍可以对其错误认识下占有的超过法定期限的土地主张权利。6.大多数法令都有限制条款,这些条款扩大了 所有人是儿童、精神病患者、无能力人等的时效占有的期间。〈然而,残疾人不在其中,其任何所有权的变动依照法律规定。〉7.近来,有人提出废除限制条款的 主张,理由是,当土地所有人是无能力人,而这些无能力人又没有明显的反对意见的话,这些条款成了案件在合理时间内解决的障碍。<理论上讲,无能力人 的亲戚/朋友,可以代理其行为,况且特殊情况下的损失可以通过增加安全性以防止无能力人潜在的突然提前提出主张的可能性来抵消？>

2. O'Keeffe v. Snyder （1980）； pg. 145, briefed 9/27/94

案情:O'Keeffe是一名画家，是几幅油画的作者。她认为她的这几幅油画是1946年从其画室盗走的。直到1972年，她向一家艺术经销协会注册这几幅油画时,才声明油画被盗，而此前她一直未做遗失广告声明。Snyder于1975从一商贩处买下这些有权利瑕疵的油画，商贩称这些油画家中早有，时间约在1941-1943年（早于所称被盗时间）。1976年，Keeffe在Snyder的画廊展馆内发现自己的这些作品，于是提起诉讼要求返还这些油画。Snyder认为不管是根据动产返还限制的法律规定，还是自商贩家中得到这些油画，已超过三十年，从时效占有，他都是这些油画的所有人。初审法庭判决Snyder胜诉，认为油画从最初被盗之日，时效就开始起算。上诉法庭推翻原判，判决O'Keeffe胜诉，认为Snyder不能证明时效占有的基本事实。

问题:谁是这些油画的真正权利人呢？

裁决:1.和不动产的时效占有不同,在涉及动产的案件中,原告的诉讼缘由不是自然增加的,因此诉讼时效是从被损害方发现或者有合理的细心而应该发现构成基础的起诉事实时,开始起算。（发现规则）

断言:2.过期的诉讼时效阻却了权利的恢复救济,同时赋予占有人合法的所有权。3.动产的时效占有,在当事人之间对占有期间的默示与不动产的时效占有的默示是相同的。

分析:1.诉讼时效的法律规定在字面上导致这样不良的观点,有权利瑕疵的财产容易被隐藏,或者它的存在不够显而易见,以便使所有人充分注意确认持有人的身份（比如珠宝饰物）。这就鼓励盗窃者认为法律严格的字面意思将会使动产的所有人因不知道谁是真正的持有人而无法行使返还该动产的权利。2.时效期满前,持有人享有除对抗真正所有者以外的所有人,但是可以撤消的权利。<为了使时效占有之后的原所有人的权利引起的一系列问题不保持静止不动,更 因为这些问题在年限和诉讼上,因此应当得到很好的解决。3.如果不允许先占的话,就会造成原所有人行使权利的期限远远长于诉讼时效,这样就使后买者处在比最初者更糟的位置。

Ⅱ Legal Translation Practice

翻译涉外法律文书的几点体会    （作者：张如积）

律师处理涉外法律事务时，法律文书的翻译是一个重要的环节，我在参与一些英汉、汉英法律文书的翻译过程中，深感我们在涉外法律文书及其翻译工作上的薄弱，有一些个人体会，提出来供大家参考。

一、与英文经济合同对比，可看到我国涉外经济合同的不足。

1988年，我在司法部涉外经济法律人才培训中心学习期间，受国防科工委中国卫星发射测控系统部的委托，翻译一份招标合同的草案，该合同是设立在英国伦敦的国际海事卫星组织（International Maritime Satellite Organization）为支持其在太平洋上空的第二代卫星跟踪、遥测及指令（TT&C）系统而发给我国防科工委的招标书的一部分，这份英国律师起草的合同草案对该项目的所有法律问题都作了详尽而准确的规定，充分地保护了其当事人英国海事卫星组织的利益，而我方参与投标的技术人员根本没有重视这份在整个招标书中只占很少一部分的合同草案，只作了技术性分析后就投了标，以至于对方因我方接受如此苛刻的合同条件不提出任何异义而感到无法理解，来函询问我方对招标书合同草案某些条款如何理解，我方这才发现这些技术人员根本没有弄懂也不能够确切翻译这一使用了大量限制性条款、逻辑性很强、包含大量法律术语的合同草案，于是委托我们尽快翻译。

我们在翻译过程中深深感到，该合同的起草人对其所要起草合同的具体招标项目了解得非常细致，包括一些技术细节问题，都作了准确的说明，确保自己一方的利益在各种可能发生情况下不受损失，很多条款列举了多种可能出现（有的是几乎不可能出现）的情况，并提出相应的处理规定，为了避免因法律制度及体系的不同而引起争议，该合同把关键性的法律名词术语包括像“当事人”、“签约人”这样的常用术语都给了定义，避免分歧产生。比较而言，我国外贸实践中，法律文书的起草往往不够认真、谨慎，为此造成损失的例子也不少见。我在工作中遇到一例。我区某厂从意大利进口一套面包生产线，其合同附件有一项条款是要求外方“免费提供烤盘”（烤盘是用于烤花样面包的附加设备），在谈判中，双方都清楚免费提供的是全套烤盘共360个，但由于没有在合同中明确，外方只给了10个烤盘，因而发生纠纷。长期以来，我国外贸大量使用固定格式合同，这种应急措施危害很大，使从事外贸的同志不钻研国际经济交往所涉外的法律问题，也不寻求律师的帮助，把格式合同作为良药妙方使用。其实，格式合同无法体现不同种商品买卖的特点，不同的法律制度，不同的商业习惯，甚至不同的商业或法律术语，只能笼统地规定一些原则，千篇一律地使用，只能增加商业交往中的法律风险。过去，我听说美国律师柯恩（教授）为准备来华投资的外商起草一份合资或合作企业的合同草案收费10万美元感到非常吃惊，在翻译了上述合同后，我部分地理解了国外的律师为什么收费如此高。他们的收费是和他们的工作量及对自己所担负工作的认真负责态度紧密联系的。这同时也是欧美国家律师的社会地位很高的原因。他们的工作态度应该为我们的学习榜样，但他们千方百计为其当事人谋利益的精神应引起我们的注意。如果我们疏忽了，就有可能让他们钻空子，造成我方的损失。

二、英文法律书籍和法律文书的翻译质量需要提高。

英语已成为国际经济和文化交流离不开的语言工具。律师在处理涉外法律事务时，除了要解决大量由于不同法律体系及法律制度带来的冲突外，还有一个重要的工作就是查阅案件中法律文书及其所涉及到的法规的翻译件（有时是正式的，有时是非正式的）。这就必然涉及到翻译的准确性问题。对于不懂英语的律师而言，在处理涉外案件时，如果有关法律文书的译本不准确，就会影响律师对案情的了解及进行客观而准确的分析。事实上，对一份法律文书的准确翻译是很困难的，由于各国法律体系和法律制度的不同，同一个法律术语在不同的语言中或不同的国度里有可能相差很大，有时甚至完全不同，这就需要作为法律文书的翻译者，或者我们律师本人对于对方国家的法律，包括法律名词的含义有较深的了解，并学习过专业的法律英语，才能初步适应工作的需要。在个别情况下，必须对译文加以注释，才能让人理解原文的全貌。

三、我国对外使用的法律文书的质量有待提高。

与欧美国家律师所起草的法律文书相比，我国对外使用的法律文书大多显得粗糙。事实上，一份法律文书的内容往往能够反映出其起草者的工作态度、业务素质，而对外的法律文书，甚至能从一定程度上反映一个国家和地区的整体文化素质。我在给一些准备在国外使用的涉外公证书进行英文翻译时，发现一部分公证书起草很不认真，连司法部颁发的最基本的格式都不符合，翻译起来特别别扭。这样的公证书，如果再加上没有法律常识的人进行翻译（而这又是大量的），那么，拿到国外使用的公证书就完全失 去了代表一个国家的公证机关所出具的法律文书的严肃性，如同一个小学生的作文一样，在对外经济贸易中，由于我国走入国际经济圈中的时间太短，大批从事外贸、法律工作的同志对有关国际经济交往、国际贸易的公约、惯例和习惯做法不够了解，因而大量采用格式合同，简单明了，原则性强，但过分粗糙，造成许多纠纷。我国目前涉外法律诉讼案件少并不是因为这类争议少，而是国内大多外贸公司不愿暴露自己的失误，以及外商对我国司法制度缺乏信心，宁愿私下和解而带来的表面现象，随着我国对外经济交往的加强和涉外法律体系的完善，对外贸易及对外各项经济合作中对高层次、高质量的法律人才的需求必然逐步迫切起来，这就需要我们律师行业尽早动手，积累必要的资料，配备必要的办公设备，培养和培训各种层次的专业人才，特别是精通法律、外语及国际贸易知识的律师，逐步参与到我国对外交往工作的各个方面，发挥律师的重要作用。