Property I Outline

SPRING 2010 PROPERTY LAW
PROFESSOR ROBERT FARRELL
QUINNIPIAC UNIVERSITY SCHOOL OF LAW

AMERICAN PROPERTY LAW
KURTZ & HOVENKAMP
5TH EDITION

FINAL EXAM

Just to give you an idea of what you’re getting, knowing that you can’t look at this entire outline before you purchase it, I’ll give you a heads-up. The outline is 63 pages long, and gives you mini-briefs of each case along with the general issues/rules that are applicable. In addition, there is a bit of policy thrown in after the major concepts, and lots of examples. I do use characters to abbreviate things: ∆ = defendant, Π = plaintiff…etc). Professor Farrell is HUGE on knowing cases (although not the names/dates…etc). His final consists of 12 Qs, all of which are variations on cases that you’ve done throughout the year. Don’t be fooled into thinking that the questions will pan out the same way that the cases did though… he changes a couple of little details so that the outcome is very different on each question. Good Luck!
ADVERSE POSSESSION

v §3.1 – Rights of Possessor of Land

Ø Tapscott v. Cobbs – Π (Cobbs) inherited a piece of land that was sold to 2 parties at the same time. Π never took possession of the land, but ∆ (Tapscott) did w/o any claim or title.
· Whether one who has inherited land but not taken possession of it has a right to take possession of it if another has come upon it and peaceably taken possession?
o YES. The heir has the right to inherit the land, and the law presumes that he has possession if he is the first owner. This can be rebutted (given that the ∆ can prove that the Π was not in possession when he “intruded”).
§ The Court is making an exception to the title requirement in this case because neither of the parties can show that they have a proper ROOT OF TITLE (unbroken chain of documents that makes a clean title).
· Usually, the Π has to prove the strength of his own title… but in this case, since neither can show a paper chain, the Court is presuming that the Π has the better title.
o When in an action of ejectment the Π proves that on the day named he was in actual, undisturbed and quiet possession of the premises, and the ∆ thereupon entered and outsted him, the Π has proved a prima facie case.
§ Unless the ∆ can provide a better title, Π wins… BUT the Π has to show that he has not abandoned the property.

v § 3.2 – Introduction to the Law of Adverse Possession

· The statute of limitations sometimes begins when the wrongful possession occurs. In other states, it begins when the person discovers or should have discovered that the wrong has occurred.

· If a person with rightful possession doesn’t sue an unlawful possessor w/in X years, they can no longer recover the property (NE is ~20 years, CA is 5).
o If the subsequent possessor enters under color of title or pays taxes, the time period is shortened (in some states).

· If the lawful possessor is banned by the statute of limitations, the ∆ gains a better title and the Π cannot sue the ∆.
o 5 criteria have to be met by the adverse possessor. The possession must be:
1. Actual – If the Π acts toward the land in question as would an AVERAGE OWNER, taking properly into account the geophysical nature of the land.
2. Open – the use of the land has to be open for anyone to see that the occupant is using the land, putting a person of ordinary prudence on notice.
3. Continuous – The law does not require the occupant to be present on the site at all times. The kind and frequency of the acts of occupancy are dependent on the nature and condition of the premises as well as the use to which it is adapted.
4. Exclusive – The sole physical occupancy or occupancy by another with the permission of the person claiming a title by adverse possession.
5. Hostile / Under Claim of Right– Hostility does not require the presence of ill will toward the actual owner nor destructiveness toward the land, only that the possessor intends to claim the land and treat it as his own.

o It might be fair, according to some scholars, to allow the ∆ to pay the Π for the property, and not to just give him the property rights… but others say that once the adverse possessor takes over, it is obvious that he had more interest in the land than the previous owner, so he shouldn’t have to pay for something that the previous owner didn’t care about in the first place.

v § 3.3 – The Actual, Open, Continuous and Exclusive Requirements

Ø Jarvis v. Gillespie – The owner of a parcel of land mortgaged it with a town. When the owner died (mortgage not paid off), the town took possession, did nothing w/ the property for 51 years, and then sold the property to ∆ via a QUITCLAIM DEED. The parcel was surrounded by Π’s property on 3 sides (the 4th being a street). Π had been using the land for logging, grazing animals…etc. ∆ argues that Π can’t take possession of municipal property (government property), and points to a statute.
· Whether one who adversely takes possession of municipal property can be considered to have rightful possession of that property?
o YES. The Π satisfies all elements of the doctrine of adverse possession, and the statute raised in defense is not applicable because the municipality was not using the land for public use and manifested no intention of ever using the parcel for public use.
· The highlight of this case is that the Π acquired the property through adverse possession for FREE because the Town sat on its rights for too long.
o We want to REWARD the possessor that improves upon the land and penalize those who don’t really have any interest in it.

Ø Actual:
· The “actual” possession doesn’t need to be some kind of benefit done to the property, bu