Property Final Outline
I. Adverse Possession
Transforms trespassers into owners
- Basic Elements of Adverse Possession (if all elements apply to possessor of land, owner is barred from bringing ejectment claim against the possessor):
a. Actual Possession
In absence of a statute, means the ordinary use to which the land is capable and such as an owner would make of it.
b. Open and Notorious
Not necessary for the adverse possessor to demonstrate that former title holder observed/knew about his use of the property. True owner is charged with seeing what reasonable inspection would disclose.
c. Exclusive
Generally means use is “of a type that would be expected of a true owner of the land in question”.
Proving that possession was not shared with the true owner may require a showing that “the record owner has been effectively excluded.”
d. Continuous
Adverse possessor must exercise control over the property in ways customarily pursued by owners of that type of property.
Tacking Doctrine - If someone possesses property adversely for less than time period required and (purports to) sell the property à succeeding periods of possessions may be added together
§ Successors can only add the original adverse possessor’s holding period if they are in privity with one another (if original purported to transfer title to the successor).
e. Adverse/Hostile (w/out permission of owner)
Showing that the true owner has permitted the use will defeat the claim
Typically presumed that possession is nonpermissive, unless the true owner produces evidence to show that the use was permissive.
§ Possession initially permissive will stay that way unless: (a) owner explicitly revokes permission, or (b) possessor announces he’s ousting true owner/claiming property as own.
- Ouster = person who explicitly states intent to take possession of entire property from co-owner by AP.
f. For the State’s Statutory Period
Standard of Proof: AP must be shown by “clear and convincing evidence”
Adverse Possessor’s State of Mind - Four approaches exist:
1. Objective test based on possession (majority rule) à state of mind irrelevant, only need lack of permission.
2. Subjective tests based on:
- Claim or right à usually do not require proof of what adverse possessor was thinking, only require that he act toward the land as an average owner would act (collapses claim or right test into the actual possession test)
- Intentional Dispossession à test requires adverse possessor to be aware that he is occupying property owned by someone else and must intend to oust or dispossess the true owner.
- Good Faith à(opposite above) Only innocent possessors mistakenly occupying property owned by another may acquire ownership by AP.
Adverse Possession Claims:
a. May be brought by the adverse possessor in a lawsuit against the record owner to “quiet title” – asks court to grant a declaratory judgment that the adverse possessor has become owner of the disputed property through AP
b. May arise as defense to trespass or ejectment claims by record owner.
“Color of Title” (required element in some states) - When A.P. has deed that purports to transfer the land in question but is ineffective to transfer the title because of
a) A defect in the deed (such as lack of signature)
b) OR a defect in the process by which the deed was issued (lack of notice to the owner when the property is sold for failure to pay property taxes).
§ Some states lower # of years required for AP when “color of title.”
§ Color of Title functions as fences do to help the court determine boundaries of the land being claimed.
Claims against the Government: Generally, claims cannot prevail against govt. property. Govt. entity constitutes absolute defense to an AP claim.
Brown v. Gobble (1996)(p.179)
1. Π sought to have ▲s prohibited from interfering with Π building a road on a 2ft wide tract of land that formed a boundary between their adjoining properties.
- Land in question was enclosed by a fence and visually appeared to be part of the ▲s property.
- When the ▲s bought their land, they were informed by real estate agent that their property ran up to and included the fence and their deed read as though it was part of their property.
2. Holding - Judgment for ▲ based on adverse possession doctrine
i. Elements for the requisite statutory period (in W. Va. ten years):
1. Tract held adversely or hostilely
2. Possession has been actual
3. Possession has been open and notorious
4. Possession has been exclusive
5. Possession has been continuous
6. Possession has been under claim of title or color of title.
a. ▲’s allege that they have “claim of title” and allege that they have had possession for the requisite ten year period by tacking on the time periods that their predecessors in title claimed the tract of land.
ii. Proof of the elements, ▲’s and their predecessors:
1. had the land fenced off as far back as 1937
2. periodically repaired the fence, routinely planted garden along the tract and removed weeds, built a treehouse in one of the trees along the tract, etc.
3. had reputation in community that the land belonged to them
4. only ones to have possession up until the lawsuit
5. maintained, cultivated, and claimed ownership
6. had all claimed ownership without the actual title
Nome 2000 v. Fagerstrom (p.187)
- Π Nome 2000 – record title holder to 7.5 acres of land in area of Alaska sued ▲ Fagerstrom for ejectment from the disputed parcel of land à ▲counterclaimed title by adverse possession.
- Π admits that from time the cabin was placed until Nome filed suit, ▲’s adversely possessed the north end of the disputed parcel, BUT contends that for the year prior (necessary for the 10 year AP statute in Alaska to hold) the ▲ did not construct significant structures and use was only seasonal and not exclusive (allowed others to pick berries, use paths, etc) or hostile. Note: Court only concerned with first year.
3. Holding – (a) ▲ did establish elements of adverse possession, but (b)▲ is not entitled to the entire disputed parcel (can’t have south part).
a. -Conditions of continuity and exclusivity require only that the land be used for the statutory period as an average owner of similar property would use it.
i. In this case since rural land, lesser dominion and control may be reasonable.
- That others were free to pick berries/fish is consistent with the conduct of a hospitable landowner à does not undermine continuity or exclusivity of their possession.
- For notoriety – quick investigation of land, especially during season it was best suited for use, would show a reasonably diligent landowner that someone else was exercising dominion and control over N. part.
- Element of hostility has nothing to do with what ▲ believed or intended. àdetermined by objective test of whether possessor acted toward the land as if he owned it without permission of the one with legal authority to give possession.
- – ▲’s use of trails and picking up liter, although maybe indicative of adverse use, would not provide reasonably diligent owner with visible evidence of another’s exercise of dominion and control.
- Prescriptive Easement – A limited right to use property of another (right to cross the property/“right of way”).
- Same elements as AP except two differences:
o Use (instead of possession).
o In some cases no exclusivity requirement.
§ AP grants title whereas easement grants legal right to continue using property in same manner as before easement was granted.
o Affirmative easements – right to do something specific on the land (right of way)
- May be acquired by prescription.
o Negative easements – rights to limit or control the use of neighboring property (ex: to prevent neighbor from adding extra story onto her building, can purchase the right to prevent any construction above the existing building).
- Cannot be acquired by prescription.
Community Feed Store, Inc. v. Northeastern Culvert Corp. (p.207)
- Holding: Π did establish a prescriptive easement for the gravel rectangular lot on ▲’s land that Π’s company (supplier trucks and customer vehicles) used for turning and backing. (Reversed finding that Π failed to prove with sufficient particularity the dimensions of the easement).
§ Extent of use must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period. à Trial court had before it extensive evidence as to the nature and scope the user claimed (approximate dimensions given).
§ General rule is that open and notorious use will be presumed to be adverse.
· Defendant argues/trial court noted that instead of using this presumption, should apply presumption that public use of private property is by permission. à This case does not involve generalized public use.
Unjust Enrichment
Somerville v. Jacobs (p.218)
- Held in favor of Π, who built warehouse on what they believed to be own lot but which actually belonged to ▲. Ruled that ▲ must:
a) pay the Π (improver) the value of the improvements under a lien ($17, 500)
OR
b) sell the land to the Π at court determined price of land pre-improvements ($2,000).
§ Issue is between two innocent parties à by selling the lot to the Π, the ▲ would “suffer no financial loss” and the Π would not lose the building. If ▲ retains the building and refuses to pay compensation for the improvements à they will be unjustly enriched by more than 8.5 times the value of the lot.
o Unjust Enrichment Doctrine – it is inequitable to allow one to be enriched by the labor and expenditures of another who acted in good faith and in ignorance of any adverse claim or title. Courts refuse to assist the rightful owner of land against the occupant unless he makes compensation for permanent and beneficial improvements made by the latter.
Note: Where one party mistakenly builds on another parties land most courts rule that the landowner becomes the owner of the structure built by someone else on her land because “trespassers cannot have the advantage of any benefits they have made to the property. Such improvements belong to the landowner without compensation to trespassers for labor or materials.
- The ruling in the case above aligns with states that have betterment statutes – allow owners to choose between:
o Paying the builder the value of the improvements built on their land OR
o Selling the land on which the improvement sits to the builder.
- Courts agree that bad faith improvers will not be granted right to compensation and will ordinarily be required to remove the encroaching structure.
Boundary Settlement
Oral Agreement
- Courts may uphold oral agreements between neighbors that set the boundary between their property if:
a. Both parties are uncertain where the true boundary lay or a genuine dispute exists over the location of the boundary.
b. The parties can prove the existence of an agreement setting the boundary.
c. The parties take (and/or relinquish) possession to the agreed line.
Acquiescence
- Even without oral agreement, courts may nonetheless recognize longstanding acquiescence by both neighbors in a common law boundary.
- 1) Adjoining owners 2) who occupy their respective tracts up to a clear and certain line (such as the fence) 3)which they mutually recognize and accept as the dividing line between their properties 4)for a long period of time, cannot thereafter claim that the boundary thus recognized is not the true boundary. (Tresemer v. Albuquerque Public School District).
Estoppel
o Boundary may be established by estoppel when one owner “erroneously represents to the other that the boundary between them is located along a certain line and the second, in reliance on that representation, builds improvements which encroach on the true boundary or take s other detrimental actions.”
§ Some states find estoppel even when no explicit representation is made à may infer a representation from an owner’s silence in face of knowledge that his neighbor is building an encroaching structure.
Dedication - A transfer of real property from private owner to gov. entity (such as a city). Valid dedication requires: Offer by owner of the property and acceptance by the public.
II. Trespass
Rules that limit possessor’s right to exclude non-owners from the property.
Trespass = Unprivileged intentional intrusion on property possessed by another.
- Intent requirement is met if the ▲ engaged in a voluntary act, such as walking on the property. It is not necessary to show that the trespasser intended to violate the owner’s legal rights.
- Intrusion may occur upon physical entry by:
o A person
o An agent such as an employee
o An object (ex: building extending over boundary onto neighbor’s property).
§ Trespass may occur both above or below surface.
Trespass Defenses - A trespass is privileged (and thus not wrongful) if:
- Entry is done with consent of the owner (person who enters w/ consent = licensee; his property interest is a license).
- Entry is justified by necessity to prevent serious harm to persons or property
- The entry is otherwise encouraged by public policy
Trespass remedies (three kinds of relief):
- Damages
o Nominal damages even if no other harm has occurred.
o Compensatory damages if trespasser caused harm to property (measured by cost of restoring the property or by diminution in its market value).
o Punitive damages to punish and deter outrageous or malicious behavior.
- Injunction – ordering trespasser to cease conduct/remedy harm caused to property.
o Π may bring lawsuit for ejectment to remove trespasser from land.
- Declaratory judgment - states the Π’s legal right against the other party.
Criminal Trespass – generally initiated by federal, state, or local govt. officials rather than by private citizens.
I. Public Policy Limits on Right to Exclude
State v. Shack (p.104)