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Property II
South Texas College of Law Houston
Ortiz, Francesca

Property 2 – Ortiz – Fall 2011

I. Adverse Possession and Prescription

a. Theory and Elements

i. Rationale behind AP

1. The law likes for ownership to be settled

2. Beneficial use of the land

3. It punishes owners for sleeping on their rights

ii. Elements:

1. An entry that is

2. Exclusive possession

a. Exclusive means to exclude the world except by permission of the possessor

3. Open and notorious

a. The adverse possessor just has to be taking actions that would put someone on notice that they were on the land

4. Adverse and under a claim of right

a. There are three views of “adversity” (aka “hostility”)

· Good faith – the adverse possessor must actually believe in good faith that he is entitled to possess the property.

· Objective – the AP’ers acts and statements objectively appear to be claims of ownership (his intent doesn’t matter)

· “Aggressive trespass” – the AP’er must know that his ocupation is wrongful but he still intends to do it and claim the property.

5. Continuous for the statutory period

a. The occupier must remain there for the statutory limitations period

b. An AP’er may tack his time onto a prior AP’er so long as there was privity between the two and the second was not trying to “adversely possess” from the first.

iii. Color of Title / Constructive AP

1. After the AP’er satsifies the requirements of AP he gets title… but title to what?

a. Entry without color of title – AP’ers who don’t have color of title only acquire title to the land that they actually possess

b. Entry with color of title – the AP’er are deemed to possess all of the land described in the deed, so long as it is a single parcel and the AP’er has occupied a significant portion of it.

2. NOTE: A possessor lacks color of title if he doesn’t believe in good faith that his defective deed is valid.

iv. Boundary Disputes

1. Resolution of Boundary Disputes

a. Agreed Boundaries

· Doctrine of Agreed Boundaries – an oral agreement between parties as to the location of the boundary is enforceable, even though it doesn’t meet the statute of frauds.

b. Acquiescence

· Doctrine of Acquiescence – long term acquiescence by the parties as to the location of the boundary is evidence of an agreement between the parties as to the location.

c. Estoppel

· Doctrine of Estoppel – one party can fix the boundary line if he can show:

· The other party made representations or took action in some way which showed that the boundary was in a certain location; AND

· The first party substantially changed his position in reliance on those representations or actions

v. Encroachment

1. True owner may be forced to convey land burdened by an encroachment for fair value, regardless whether true owner had notice, if:

a. Encroachment was innocent

b. Encroachment is of a small portion of land along boundary (less than several feet);

c. Encroachment cannot be removed without great hardship or expense;

d. Conveyance will not cause serious damage to true owner’s remaining land (e.g., causing it to violate zoning restrictions)

vi. Tacking

1. Privity requirement between between AP’er and next in line which allows the next in line to tack his time onto AP’er.

2. English Rule: no privity requirement

vii. Disabilities

1. Three main kinds:

a. Mentally incapacitated

b. Age

· Being a minor is a disability

c. Imprisonment

2. A disability will stop the clock on adverse possession until the disability ends. At the ending of the disability statute of limitations kicks in (usually 10 years) and adverse possession works like normal again.

3. The disability must exist at time of entry

4. The rule is that you use the longer time period (whether that be the Disability SOL or the AP SOL) to start the clock when the disability ends.

b. Prescriptive Easements

i. Overview

1. Adverse use for a sufficient period of time can ripen into an easement by prescription

ii. Elements of Prescriptive Use

1. The adverse use must be actual,

2. Open and notorious

3. Continuous

contract is not necessary so long as all of the elements are there

2. Elements:

a. In writing,

b. Signed by the party to be bound

c. Describe the property to be purchased; and

d. State the price

3. Exceptions to SOF:

a. Part performance – allows specific performance when particular acts have been performed by one of the parties (VARIES BY JURISDICTION – TEXAS REQUIRES ALL 3)

· Payment of all or substantially all of the purchase price (rarely enough on its own)

· Possession (can stand alone)

· Improvements (can stand alone)

b. Estoppel – applies when unconscionable injury would result from denying enforcement of the oral agreement. (can also apply when unjust enrichment would occur)

· Party seriously changes their possession to their detriment

· In reliance on the contract

· Resulting in unconscionable injury

ii. Marketable Title

1. The seller has an implied duty to deliver marketable title to the buyer – title that a prudent buyer would accept and reasonably free of doubt that there are rival claimants.

2. Can be delivered by:

a. Good record title

b. Proof of title through AP

iii. Defective Title

1. A defect must be substantial and likely to injure the buyer to cause the title to be unmarketable

2. Encumbrances make title unmarketable unless the encumbrance:

a. A beneficial easement known to the buyer; OR

b. A restrictive use covenant that does not limit the particular use specified in the sale contract

c. NOTE: Zoning restrictions are NOT encumbrances (however, property in violation of a zoning ordinance at the time of sale renders title unmarketable)