ADVERSE POSSESSION

Requirements:

1.  Actual possession

  1. physically possess the land, the way a true owner would; either enclosing the property and treating as own, or if no fence, engaging in significant activities; enjoyment, cultivation, residence
  2. Color of title – when an adverse possessor has a defective deed that purports to transfer the land, AP allowed as long as physical possession of part; in this case, occupation of any portion of the land described by the defective title is deemed to be actual possession of the whole lot described in the void deed. Must hv actual possession of some to claim the whole.
  3. They both might have constructive possession
  4. Romero v. Garcia – Void deed is adequate for color of title. A deed is suff for the purpose of color of title even though it is void b/c it lacks a signature.
  5. Romero v. Garcia – Indefinite and uncertain description of boundaries may be clarified by subsequent acts by the pts.

2.  Open and Notorious

  1. Whether a reas inspection would have put the true owner on notice, what a reas inspection would reveal
  2. Enclosing by a fence or wall is universally recognized, building structure, clearing land, driveway, using for parking, storage, garbage removal, planting and harvesting, picnicking
  3. “Unfurling his flag”

3.  Exclusive

  1. use is of a type that would be expected of a true owner
  2. Nome 2000 v. Fagerstrom – where land is rural, lesser exercise of dominion and control may be reas.
  3. Nome 2000 v. Fagerstrom – go beyond mere casual and occasional trespasses, evince a purpose to exercise exclusive dominion over the prop.

4.  Adverse or Hostile

  1. Must show use was nonpermissive. Presumption that possession of another’s prop is nonpermissive.
  2. If you give permission you have a license.
  3. Three tests to determine the adv possessor’s state of mind
  4. Objective: State of mind is irrelevant. All you have to show is the possessor lacked permission from the owner. Just look at the acts, if they meet the other reqs, then they have also met this. Majority.
  5. Claim of right, without permission (requires AP to act toward land the way an owner could act)
  6. Collapses w/ actual possession test. So if actual possession shown, claim of right is too.
  7. Subjective: Good faith – made a mistake but thought it was theirs
  8. Pol for good faith req
  9. Protects prop owners
  10. Does not encourage stealing of others’ prop and infringing on others’ prop
  11. w/o we would reward a knowing trespasser
  12. w/o it = unwise b/c decreases incentives to plan correctly
  13. Pol against good faith req:
  14. rewards innocent possessors who mistakenly occupied;
  15. promotes efficient land use
  16. encourages use or prop and to care/inspect it
  17. looks at totality of circumstances
  18. Policy: see arguments under PE’s for presumption
  19. Subjective: Intentional dispossession
  20. Adv possessor must be occupying pro owned by another and intend to take it from the true owner
  21. If you are in the jx that requires this, if the person took land by mistake, then à no claim
  22. Policy: rewards wrongdoers

5.  Continuous for the statutory period

  1. How a true owner would use it for the statutory period
  2. Tacking – successors can add the original adverse possessor’s holding period; must connected in privity with one another, meaning the original adverse possessors purported to transfer title to the successor
  3. Brown v. Gobble, ownership period of Ds was irrelevant b/c Blevins (first APs) had already acquired possession on their own.

-  Prop taxes in some jx must be paid

-  Some jx – color of title

-  All elements must be met for the statutory period (maybe the first owner uses it blatantly, the 2d owner starts sneaking on prop after dark, and starts using it secretly, so open and notorious might not be met)

-  Standard: clear & convincing ev – Brown v. Gobble

Policy:

  1. Land should not be taken by another – Law should not allow the land of one to be taken by another w/o a conveyance or consideration, merely upon slight resumption or probabilities.
  2. Protects traditional familial and societal values
  3. Reduces chances of spurious claims


EASEMENTS

1.  Express Easements

2.  Easements by Prescription

3.  Easement by Estoppel (Irrevocable License)

4.  Implied Easements by Prior Use – based on INTENT of parties

a.  Implied Easements by reservation

b.  Implied Easements by grant

5.  Easements by Necessity

EXPRESS EASEMENTS

Express easements are created by explicit agreement between the parties.

  1. Must be in writing, normally signed only by the grantor.
  1. Reqs for the Burden to Run with the Land
  1. Writing – a writing in the deed granting the property, can be earlier in the chain of title, doesn’t have to be included in subsequent deeds
  2. Intent – grantor must have intended for the easement to run with the land. Grantee must have intended for the benefit to run with the land.
  3. Notice - easements are binding on subsequent owners only if they have notice.
  4. Actual – if the subsequent owners in fact know about the existence
  5. Inquiry – if there are visible signs of use by nonowners to put the owner on notice
  6. Constructive – is the easement or reference to it in the chain of title? if the deed conveying the easement is recorded in the proper registry and would be revealed by a title search
  1. Appurtenant Easements. All Es are either appurtenant or in gross. Has a dominant and servient estate. Easement is attached to the dominate estate and runs w/ the land (passes to subsequent owners). Reqs for the Benefit to Run with the Land
  1. Presumption for appurtenant easement
  2. Policy: ppl presumed to take property w/ all the benefits attached to it

Kind contemplated by grantor

  1. Manner for which it was created - Owner of E may prepare, maintain, improve or repair the way in a manner to an extent reas calculated to promote the purposes for which it was created.
  2. Limitations. What were the express limitations?
  3. Intention. What intent can be inferred in light of facts and circumstances existing when it was created

Unreasonable burden - Owner may not create an undue burden on the estate

Subdivision - Subdivision will not cause an unwarranted inference w/ the rts of others who hv a similar rt of use.

  1. Extension – Intent of grantor of easement important here
  2. Majority: E cannot be used to benefit non-dominant land
  3. Some: ok if use does not create additional burden on servient estate

Termination of Easements

  1. Release – dominant owner releases by agreement in writing
  2. by their own terms – for ex, if the deed conveying the e expressly states that it is to last for 10 yrs;
  3. merger - when the holder of the servient estate becomes the owner of the dominant estate;
  4. abandonment - requires non-use + act by the benefited party which show intent to relinquish rts
  5. adverse possession or prescription – if the owner of the servient estate meets all the elements;
  6. misuse – if used to benefit non-dominant parcel, etc. and the misuse cannot be enjoined
  7. frustration of purpose – similar to abandonment; the purpose of the easement has become impossible to accomplish
  8. superior title holder – owner who secured a loan w/ bank granted adjacent owner an easement, if bank forecloses, the E will be terminated
  9. no notice – if a subsequent owner of the servient estate takes title to the prop encumbered by an express easement w/o notice of the easement
  10. Estoppel – servient owner stands by while dominant owner constructs a garage directly across the way

PRESCRIPTIVE EASEMENTS (use) – See Adverse Possession

  1. Elements same as AP (establishes title)
  1. Actual USE (as opposed to possession)
  1. Community Feed Store: The extent of acquisition must be determined by the extent of the actual use. Slight deviations from the accustomed route will not defeat an E, only substantial changes which break the continuity of the course of travel.

b.  Open and notorious

  1. O&N presumed to be adverse unless for public use.
  1. Exclusive
  1. Most cts drop this, but some retain it

d.  Adverse/Hostile

i.  Acquiescence (some)

  1. Some: means owner did not assert rt to exclude by bringing trespass action
  2. Others: LO must hv known a/b use and passively allowed it to con’t w/o formally granting permission

e.  Continuous for statutory period

  1. Community Feed Store: when a PE is claimed, the extent of the user must be proved not w/ absolute precision, but only as to the general guidelines consistent w/ the pattern of use throughout the prescriptive period.
  2. Policy [similar arguments to good faith requirement]
  1. In favor of presumption of non-permission (burden on owner to rebut & show she gave permission)
  1. Owner should hv objected & had a substantial period of time in which to do so
  2. Owner created legitimate expectations on the part of the prescriptive user that the use would con’t; appears consensual
  3. L/T acquiescence – looks like owner doesn’t care; implicitly consent
  1. In favor of presumption of permission (burden on prescriptive user to rebut & show he did not hv permission)
  1. Fairness – most neighbors allow periodic entry; acquiescence should be understood as implicit permission (implied consent) that defeats the adversity requirement
  2. Owners shouldn’t lose prop interests b/c someone uses their pro for long period
  3. Owner has expectation that property rts remain
  4. Promotes cooperation among neighbors
  5. Lets user purchase right if it is valuable to him/her
  6. “Neighborhood accommodation exception” - Owner should be protected from PEs over large bodies of unenclosed land where owner could not reas know of passings over the land
  1. Should the adverse user lose as a result of own neg?
  1. Yes – would increase incentive to plan correctly
  2. No – might cost more $ to undo neg, and if adverse user was O&N, the owner didn’t kno/care, didn’t do anyone harm
  1. Should there be compensation for the PE when adverse user acted in bad faith?
  1. Yes – whether it was in bad faith or not. If someone is using another person’s prop and the true owner finds out/doesn’t want to share anymore, the user should pay for what is not his
  2. No – might put person out of bus; neighborly gesture

DEFENSE – LICENSE (use w/ permission)

  1. Permission/license granted
  2. Generally revocable at will
  3. May become irrevocable (irrevocable license aka “E by estoppel”)
  4. Claimant relied on that license by expending $ to build a house, a rd, etc
  5. Owner had knowledge of reliance

EASEMENT BY ESTOPPEL (IRREVOCABLE LICENSE)

One may acquire an irrevocable license where:

  1. Spent money/labor on the faith on the license in improving the way/road for other purposes connected w/ its use or has acquired an interest in the land in the nature of an easement
  2. With knowledge of the licensor
  3. Unconscionable to revoke by preventing its use

-  Some cts may only grant this if there was fraud or misrepresentation.

-  Benefit runs with the land if reasonably necessary for the enjoyment of the dominant estate (for implied, necessity & estoppel)

-  Policy for:

o  Prevents injustice: protects the interest of the licensee in relying on relationship w/ owner for continued access to the property.

o  Prevents grantor from committing fraud

-  Policy against:

o  protect the grantor’s intent – granting an easement by estoppel is likely to contradict the grantor’s original intent.

o  Licensee improvidently expended money in the hope of a continuance of a license

o  Would prevent the burdening of lands with restrictions founded upon oral agreements

IMPLIED EASEMENTS BY PRIOR USE aka quasi-easement

Implied easements are recognized despite the absence of express agreement to create an easement. Sometimes used to effectuate the intent of the parties. Sometimes might contradict the actual intent and be implied by law b/c of policy reasons about the fair or efficient allocation of property rts in the context of the relationship established by the parties.

  1. Common owner: Two parcels previously had a common owner and subsequent transfer separating ownership

2.  [CO’s] Use was apparent and obvious at time of severance – if a grantee could, by a reas inspection of the premises, discover the existence of the use. Apparent does not mean visible.

3.  [CO’s] Use was continuous (permanent) use prior to and at time of severance – not sporadic so the use would be known to the parties at the time of the grant

  1. Necessity. The easement is necessity to the parcel retained by the grantor at time of severance

a.  Implied Easement by Grant – in favor of the grantee - adds an additional rt to conveyance.

  1. Grantor sells the dominant estate and retains the servient. Grantee claims that grantor intended for her to have an easement.
  2. Reasonable necessity or even convenience is the test
  3. Implied Easement by Reservation – in favor of the grantor - requires higher necessity for the E
  4. Grantor was in control of grant. Deed – construed vs. maker
  5. Grantor sells the servient estate and wants to claim an E for the benefit of the land he retains
  6. Reservation is in derogation of plain words of the conveyance

§  Some jx require strict necessity

§  Some jx don’t permit implied easements by reservation

§  Others – even if by reservation, necessity is just one factor to consider

EASEMENTS BY NECESSITY

Reqs:

  1. Common owner – servient and dominant parcels must have been under CO at one time
  2. Strict Necessity – not just reasonable necessity by the standard implied easment

3.  Use at time of severance

Lasts only as long as it is necessary. Terminates when necessity ceases.

Policy:

1.  For easements by necessity:

  1. To effectuate the intent of the parties
  2. To promote the efficient utilization of property (by preventing property from being landlocked and taken out of the market)

2.  Against easements by necessity:

  1. Grantee knew she was buying a landlocked parcel

Finn v. Williams

-  strict of absolute necessity required

-  Rule: if, at one time, there has been unity of title . . . the rt to a way of necessity may lie dormant through several transfers of title and yet pass w/ ea transfer as appurtenant to the dominant estate and be exercised at any time aby the holder of the title thereto.