Re: Adverse Possession / Estoppel by Aquuiescence

More | Report Post

Rather than addressing the entire problem; I would like to
comment on your understanding of laches. You note that:
"In most contexts, an essential element of laches
is the requirement that the party invoking the
doctrine has changed its position as a result of
the delay."

I wonder if you are confusing collateral estoppel with
laches? They are indeed similar. However, estoppel deals
with loss that would be suffered by a party who justifiably
relied (changed his position) because of an actual or
implied representation (implied by delay) by another party.

On the other hand, laches depend on a legal prejudice that
arises from unjustifiable delay by another party such that
granting relief to the delaying party would be inequitable.
To invoke laches, the party must show that the delay caused
actual prejudice in their ability to litigate.

I believe that laches depend on a diminished ability to
litigate the dispute which was caused by an unreasonable
delay. vs. Collateral estoppel which depends on an actual or
potential financial loss caused by changing your position
based on the delay of another.

In simple terms;

Laches = diminished ability to litigate caused by delay.

Estoppel = change in position as a result of the delay that
does or may cause financial loss.

On 7/20/07, Duane wrote:
> Let's say (A) owns a number of properties. (A) has 2
> siblings (B) and (C). Both (B) and (C) are married. (B)
> has no children. (C)divorces but has 4 children. (C) dies
> before (A), leaving the 4 children as heirs to 1/2 of
> (A)'s Estate.
> (A) places (B)'s name only, not spouse, on property Deeds
> to hold in Trust for (A). (A) dies intestate and the
> children of (C) file a Chancery Lawsuit against (B) to get
> their rightful share of (A)'s Estate. All properties of
> (A)'s estate were listed in the Chancery Suit and equally
> divided to (B) and (C)'s children, except 1 remaining
> parcel. (B), in a letter to (C)'s children, writes she
> plans to have the remaining parcel surveyed and divided
> into 2 parcels with Deeds made after a certain date. One
> Deed for (B) and one Deed for (C)'s heirs.
>
> (C)'s eldest, we'll call (D) here, buys out her siblings
> interests and relocates to where (A)'s property is located
> and assume control per Court records.
>
> (B)and spouse moves out of state and fails to divide the
> remaining parcel in accordance to her written statement.
> (B) dies intestate, and by law, (B)'s spouse, (B1)then
> takes the property. However, (B1) never files with court
> any documentation of (B)'s death. (B1)never has (B)'s name
> removed from property Deed. Further, (B1) fails to notify
> the local government, in which the property is located, of
> his mailing address to recieve tax bills. (B1) attempts to
> sell the property outright 3 years after (B)'s death.
>
> (D)finds out about (B1)'s attempt to sell property in
> direct breach of (B)'s written agreement. (D)notifies
> (B1), that she will get a Court order to block any attempt
> by him to sell this property and file a lawsuit against
> him. (D) verbally notifies (B1) that the property in
> question, was purchased and owned by her grandfather (A).
> (D) informs (B1) Open and Hostile, she is the true and
> rightful owner of the property and intends to take it
> outright. (B1) never denies nor refutes (D)'s claim. (B1)
> never makes an official counter claim by filing a legal
> notice to change (B)'s name on Deed, nor does (B1) pay the
> property taxes to show his rightful claim.
>
> 25 years pass with no counterclaim, written or verbal
> communication from (B1) to (D), nor does (B1) make any
> official record changes at local government. (B)'s name
> remains on Deed to this day, 32 years after her death. (D)
> has been the caretaker, guardian and steward of the
> property for 41 years, since (B)and(B1) relocated out of
> state. Unknown to (D), (B1) had died 13 years after (B).
> (D) was never notified of (B1)'s death.
>
> (D) has been faithfully and lawfully paying the property
> taxes on the property in question for the past 25 years.
>
> (D) now seeks to get Adverse Possession of the property
> and claims the common law doctrine of estoppel by
> acquiescence that is applied when one party,(D) gives
> legal notice (verbal) to a second party B1)of a fact or
> claim, and the second party (B1) failed to challenge or
> refute that claim within a reasonable time. The second
> party (B1)is said to have acquiesced to the claim, and is
> estopped from later challenging it, or making a
> counterclaim.
>
> (D) will assert that (B1)'s Silence is Aquiescence. That
> where (B1)'s silence, for the 13 years of the Open notice
> by (D)'s claim of rightful ownership of the property, up
> to and upon (B1)'s death, meant that he accepted or
> permited (D)'s acts without protest or claim thereby loses
> rights to a claim of any loss or damage.
>
>
> (D) intends to also invoke Estoppel by Laches as an
> equitable defense, or doctrine, in an action at law. The
> person invoking laches,(D)is asserting that an opposing
> party (B1)has "slept on his rights", and that, as a result
> of this delay, that other party (B1)is no longer entitled
> to his original claim after (B)'s death.
>
> Put another way, failure to assert one’s rights in a
> timely manner can result in claims being barred by laches.
> Laches is a form of estoppel for delay.
>
> In Latin; Vigilantibus non dormientibus æquitas subvenit.
> Equity aids the vigilant, not the negligent (that is,
> those who sleep on their rights).
>
> In most contexts, an essential element of laches is the
> requirement that the party invoking the doctrine has
> changed its position as a result of the delay. [(D)'s
> claim that (B) failed to divide the property as agreed to
> by after a certain date. That (B1) also failed to honor
> the agreement.] In other words, the defendant is in a
> worse position now than at the time the claim should have
> been brought. For example, the delay in asserting the
> claim may have caused a great increase in the potential
> damages to be awarded; or assets that could earlier have
> been used to satisfy the claim may have been distributed
> in the meantime; or the property in question may already
> have been sold; or evidence or testimony may no longer be
> available to defend against the claim.
>
> (D)'s claim and position for Adverse Posssesion is:
>
> 1 - It was Open and Notorious
>
> 2 - That possession is adverse and under the claim of
> right.
>
> 3 - That in good faith, (D) believes she owns the property
> as part of the original inheritance from (A)'s Estate.
>
> 4- (D) has possessed the property as a protective steward
> continuous beyond the state statutory limit by paying the
> property taxes. 25 years.
>
> 5 - (D)'s right to invoke Estoppel by Aquiescense and
> Estoppel by Laches, Penalizes (B1) for sleeping on his
> rights. (B1) failed to make any simple legal counterclaim
> by changing (B)'s name on the Deed to reflect his. (B1)
> paid no property taxes on said property after (B)'s death
> that would prove his interest in the property, thereby
> forfeiting and relinquishing his rights.
>
> The evidence here is, by way of the original Chancery
> Lawsuit of (A)'s Estate, that directly links (D) as a
> rightful heir to the property in question, coupled with
> the written letter of (B),stating her intent to divide the
> property and failed to do so. (D)'s Open and Notorious
> Claim of rightful ownership to (B1) after (B)'s death.
> Plus (D)'s equitable interests as defense, in that she has
> been paying the property taxes for 25 years on the
> property in question.
>
> Question; will (D) be able to make a sufficient claim and
> legal right to Adversely Possess the property and get a
> clear Title?
>
>
>
>
>
>