Property

Front 1

What is adverse possession? (4)

Back 1

-gives ownership to someone who possesses the land for a certain amount of time in a certain way
-has ownership, but not title, can file to quiet title
-before acquiring ownership, the possessor has all the rights of an owner except against the true owner
-the SOL may be 5-21 years, depends on jurisdiction

Front 2

What are the purposes of adverse possession? (6)

Back 2

-protects innocent buyers
-protects innocent possessors
-rewards those who are productive with land
-helps administratively (clear title issues)
-honors expectations
-bars stale claims

Front 3

color of title (4)

Back 3

-a written instrument that appears valid, but is not
-and possessor honestly believes it is valid
-helps to support "claim of right"
-some jurisdiction have different AP rules when there is color of title.

Front 4

requirements of adverse possession (5)

Back 4

-actual entry giving exclusive possession
-open and notorious
-hostility
-under claim of right
-continuous, uninterrupted possession for SOL

Front 5

Req. 1: actual entry giving exclusive possession (4)

Back 5

-Triggers the cause of action, starts the statute of limitations running
-Exclusive: cannot be sharing possession with the owner or with the public generally
-Need not be absolutely exclusive, it must be of a type that would be expected of an owner
-Possession: Use alone does not constitute possession, ultimate test is exercise of dominion over land as owner would

Front 6

Req. 2: open and notorious (3)

Back 6

Possession must be open, notorious, and visible
Acts must be such as will constitute reasonable notice to the owner that he is claiming dominion, so that the owner can defend his rights (public policy)
Typical acts of an owner of property; acts which the community, observing them, would infer the actor to be claiming ownership

Front 7

AP Req. 3: hostitlity (3)

Back 7

Hostile: does not mean animosity, rather possession is without the owner’s consent
Can’t have permission of the landowner to use property
Can be hostile even if the claimant knows of no other claim and falsely believes that he owned the land in question

Front 8

AP Req. 4: Under a claim of right (3)

Back 8

Claim of right: conflict, you are claiming to own it while someone else also is claiming it; assures that the true owner is not lulled into believing an occupant will make no claim against him
Majority: Subjective intent is irrelevant (not because they don’t like minority’s public policy aspect, it merely gets too messy to determine intent
Minority: Good faith is required

Front 9

Objective considerations for claim of right in an AP case (majority) (3)

Back 9

state of mind of the possessor is not very important; the actions of the possessor are all that matter.
Actions, including statements, must look like they are claims of ownership (if so, claim is adverse and under a claim of right).
Person who is not claiming title can still be adverse; important things is that he is occupying the land without the permission of the owner

Front 10

Subjective cosiderations for claim of right in an AP case (minority) (3)

Back 10

-Possessor must have a bona fide or good faith belief that he has title
-If possessor knows he has no title, and that someone else has title, his possession is not adverse
-Mere squatter cannot be an adverse possessor
-If possessor mistakenly believes that he has title but, if he knew the truth, would not claim title, he is not occupying adversely (boundary disputes)
-Courts usually require the possessor to act in good faith

Front 11

AP Req. 5: Continuous and Uninterrupted possession (lots) (8, 2 tips)

Back 11

-Requires only the degree of occupancy and use that the average owner would make of the particular type of property
-Purpose: to give owner notice that the possessor is claiming ownership, and that the entries are not just a series of trespasses
-Use of a summer home only during the summer for the statutory period is continuous use because such lands are normally used this way
-Tip: be sure to analyze any intervals when the adverse possessor is not using the property involved. If average owner would use the property all year and adverse possessor vacations there for two weeks, it is not continuous
-Abandonment: the intentional relinquishment of possession. If possessor abandons the property for any period of time without the intent to return, continuity of adverse possession is lost
-Tip: if there are intervals when adverse possessor is not using the property, you must also consider his intent
-Tacking by successive adverse possessors
-Interruption by true owner: if true owner reenters land openly and notoriously for the purpose of regaining possession, an interruption has occurred and statute of limitations stops running
-In some states, adverse possessor must pay property taxes to prevail
-Statute of Limitation does not run while owner is mentally disabled or a minor or in the armed forces: TOLLING STATES

Front 12

Tacking (3)

Back 12

-Adverse possessor can tack onto her own period of adverse possession any period of adverse possession by predecessors in interest
-Separate periods of actual possession by those holding hostilely to the owner can be tacked together, provided there is privity of estate between the adverse possessors (possessor voluntarily transferred to a subsequent possessor either an estate in land or physical possession (no privity of estate if it is ousting))
-Tip: remember privity of estate in tacking questions – one possessor voluntarily transferred possession to subsequent possessor

Front 13

Restated AP requirements in class (5)

Back 13

-Hostile/Adverse/Claim of Right (all the same)
-Exclusive
-Open & Notorious
-Actual
-Continuous

Front 14

The government and AP (5)

Back 14

-usually people can't get gov't lands
-in some states it's barred, in some the SOL is twice the length
-some states don't have extra protection though (4)!
-the gov't has so much land, huge burden
-the gov't is likely just to give it

Front 15

What is privity in a AP context? And more COT.

Back 15

(1) Color of Title
(2) Not color of title
-without COT, they must possess the whole part or they can't get it
-privity is when there is some relationship (buyer and seller)
-privity permits tacking

Front 16

Tioga (4)

Back 16

-thought it was gov't land
-failed because they had no claim of right
-court also rejected ancient principle of the need for real hostility
-hostility will be implied regardless of state of mind

Front 17

Halpurn (5)

Back 17

-legal issue
-offered to buy and then just used it
-no AP because he knew it was someone else's land.
-modern trend, needed claim in good faith (subjective view)
-courts will probably resist this trend because hard to tell, protecting negligence anyway...

Front 18

ITT (3)

Back 18

-boat sometimes docked there
-he built things on the land
-exclusivity is an issue (let others use the outhouses)

Front 19

Marengo (3)

Back 19

-cave case
-trespassing underground
-SOL didn't run because owner didn't know - not open and notorious

Front 20

Kunto

Back 20

-people were on the wrong lots
-but they weren't there for long enough
-but privity between sellers and buyers allowed tacking
-so Kunto had right to the land through AP

Front 21

Ray

Back 21

-Seasonal home
-still continuous use, because it's the way a normal owner would use it.
-held for Rays

Front 22

Permission

Back 22

-AP can't win if they have permission from the true owner
-but the true owner can't win just by claiming to give permission when the AP never asked for permission

Front 23

Remainderman vs. Adverse Possessor

Back 23

-If AP gets land that was under a life estate or something, the owner of the remainder is not affected!