Property I Outline

Mertens Property 2013

GENERAL

· Real Property: rights attached to land, such as buildings, fences, and trees.

· Notice:

o Inquiry notice: deemed to have notice of the information one would have discovered from a diligent search a reasonably prudent person would have made under the circumstances putting him to inquire

· three forms of notice:

· Actual notice: knowledge of a prior interest

· Record notice: notice of any prior interest that would be discovered by a standard search of the public land records

· Inquiry notice: notice of any prior interest that would have been obtained by investigating suspicious circumstances

· Record notice and inquiry notice are forms of constructive notice

· Deed:

o speaks when it is delivered and accepted

§ delivery with condition that deed is to be operative only after death and with reservation of a right of retrieval are not effective

· most jurisdictions find an effective delivery if the deed is to be operative only after death when the grantor is unable to retrieve the deed

§ Modern trend: revocable deeds are valid. In most jurisdictions a deed which expressly provides that grantor may revoke at any time in the future is valid

§ Majority rule: rebuttable presumption that deed is delivered if recorded or transferred to the grantee

§ usually acceptance is presumed even if the grantee is unaware of the gift

o must be signed by grantor to satisfy Statute of Frauds

o grantor must manifest an intention to immediately transfer title to grantee

§ it is grantor’s intent at the time the deed is delivered which is controlling

o does not have to be recorded for it to be operative

· Will:

o speaks when the devisor dies

ADVERSE POSSESSION: common law was 20 years, start over when disability ends

· Effect: upon satisfaction of the elements of adverse possession, the adverse possessor’s possession becomes good title automatically – of the same quality as the original true owner

o no damages or legal remedy to the true owner for possession of the property now or during the period of adverse possession

· Standard of Proof:

o Clear and convincing evidence

§ Policy: property is important, even essential, to people, and the loss of it should be proven in a certain manner

o Burden is on adverse possessor

· Elements:

o (1/5) Actual:

§ Requirements:

· physically used the land in the same manner that reasonable owner would given its character, location, and nature – what uses would be expected in the community

§ or Constructive possession:

· Requires:

o Actual possession of part of the property

o Color of title describing the entire property

§ Color of title: defective deed or other instrument that purports to convey title to the land in question

· exception: constructive possession through color of title with possession of a fraction of the parcel is entirely negated by actual possession by the true owner of part of the land described

o (2/5) Open and notorious:

§ visible and obvious, so that if owner made a reasonable inspection of the land, he would receive notice of the adverse claim

§ character and nature of the land

§ Actual notice: satisfies open and notorious element automatically, even if no one else has reason to know of the adverse claim

· exception: required only for adverse possession against co-owners; otherwise it’s optional

o (3/5) Exclusive:

§ possession cannot be shared with the owner

§ or the public in general

· only must exclude third parties to a reasonable extent

o (4/5) Hostile and adverse:

§ Majority rule/Modern trend, objective test:

· no permission from the true owner

· potential possessor’s state of mind is irrelevant

o for permissive possession to become hostile, adverse possessor must send unequivocal message to true owner, and true owner has to have actual notice, that the possessor has become adverse

§ Minority, subjective intent test:

· bad faith required

· good faith required

o difficult to reconcile with idea that adverse possession exists to discourage owners from sleeping on their rights

o (5/5) Continuous:

§ continuous for the required period (typically statute of limitations)

§ does not mean uninterrupted

· possessor must use the property as would a true owner under the circumstances

· seasonal use may be continuous

§ all elements must be satisfied for the entire period to be continuous

§ break in continuity:

· did they intend to come back, did they intend to abandon?

· would a true owner have used it that way?

§ Policy reasons:

· to let the true owner know that someone else is using it, so he can respond

· Privity and Tacking:

o Tacking:

§ adding of the duration of the first adverse possessor’s use of the property to the second adverse possessor’s use

§ requires privity

· Privity:

o legal transfer from first possessor to second: through contract of sale, gift, will, or other inheritance or conveyance

· Exception, some jurisdictions: where privity is by a deed which does not describe a portion of land that is in fact adversely possessed, tacking is still good for that