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Property II
South Texas College of Law Houston
Moya, Olga

I. Adverse Possession & Prescription
A. Elements
1. actual physical entry / exclusive possession
a. excludes true owner
b. provides notice to true owner
2. open and notorious
a. entry of a sort that reasonably informs true owner
b. no presumption of knowledge arises from a minor encroachment; actual knowledge of the trespass is required
c. when possible, the loss is borne by the party who caused the problem
3. adverse and under a claim of right (a.k.a. “claim of title”)
a. w/o permission of true owner; if you have permission, it’s an easement
b. “color of title” is a type or subset of “claim of title”
1. objective std. – intent of trespasser irrelevant
2. good faith std. – trespasser thinks he really owns the land he’s entered
3. aggressive trespasser – trespasser knows he doesn’t own it and intends to adversely possess the land from the very beginning
c. claim of right – claimant is in possession as owner with intent to claim the land as his/her own, and not in recognition or subordination to record title owner.
d. color of title – one way to prove a claim of title; claim founded on a written instrument (deed, will, etc.) that is defective or invalid for some reason (i.e., conveyor did not have title to convey to you)
4. continuous possession for the statutory period
a. statute of limitations – point at which true owner can no longer sue to eject a trespasser from his property
b. doesn’t require continuous occupation (i.e., you can leave/return periodically), but if you abandon the claim, you must start all over again.
c. land must be used in the way it is normally used by others in A.P.’s position
B. Reasons for Adverse Possession
1. encourages beneficial use of the land
2. quiets title
3. laches – action for sleeping on your rights
4. fulfills expectations of adverse possessor
C. Relation-back (30-year statute of limitations)
1. If A enters adversely in 1968 and his possession is continuous for the statutory period, then in 1998 A will own the land. It’s as if A owned the land since 1968.
D. Other methods of resolving boundary disputes
1. Doctrine of Agreed Boundaries – oral agreement to settle disputed boundary is enforceable if neighbors accept the line for a long period of time.
2. Acquiescence – long acquiescence is evidence of an agreement
3. Estoppel – when there is a representation by A and reliance by B on that representation, A is then estopped from denying the validity of his statements.
Ex: A builds a fence that encroaches upon B’s land and meets all elements of A.P. B then asks A to move the fence and A agrees. A later changes her mind and wants the adversely possessed land back. A wins b/c she had already met all the elements of A.P. before she moved the fence.
E. Tacking
1. American Rule: “Earning Theory” – tacking of A.P.’s only allowed if there is privity between them (voluntary transfers).
2. English Rule: no privity required; “Sleeping Theory” – policy is to keep land in use and punish people for sleeping on their rights.
Rule: Once there’s an entry against an owner, A.P. begins and possession is not defeated or interrupted by subsequent transfers by the owner by conveyance, will or intestacy.
1982 – O dies, devising Blackacre “to B for life, remainder to C”.
1983 – A enters
1997 – B dies. Who owns? C owns b/c A can only adversely possess the life estate held by B. In 1997, C can kick A off the land. A can only adversely possess if she possesses the land for the statutory period beginning at the time C’s possession starts in 1997.
Tacking Problems – p. 149
1. (a) In 1997, O owns Blackacre. B cannot tack A’s possession to his b/c there is no privity between B and A. Only O can eject B.
(b) If A leaves in 1994 and recovers possession 6 months later, and O does nothing, A will own Blackacre in 2004.
(c) If A abandons in 1994 and B immediately goes into possession, and O does nothing, B will not own Blackacre in 1997 because there was no privity between A and B.
2. If A has stayed for the statutory period and has met all other requirements, then A owns Blackacre.
3. In 1997, when B dies, A owns it if she has been there for the statutory period and it was open and n

ssion Prescriptive Easements
1. Possessory 1. Non-possessory
2. Exclusive possession (must have) 2. Exclusivity usually not required
3. Open & Notorious – must be clearly 3. Open & Notorious – must clearly delineate
on the land use by the trespassor
4. Adversity 4. Adversity sometimes required
*** If the land use is limited, it’s probably P.E.
*** A letter to an A.P. to vacate is usually not enough; you must actually get them off the land or stop the use.
*** A court is likely to allow an easement over quasi-government property, and may allow it over private property.
3. Generally, the public cannot prescribe an easement. Some jurisdictions allow specific groups to do so, but not the general public. Requirements for groups:
(a) strong proof of adversity/hostility
(b) different use than general public had
In jurisdictions that allow the public to prescribe an easement, the owner has to be notified of the specific use.
(c) Public Trust Doctrine: land covered by tidal waters (wet-sand beaches) belongs to the public.
4. Ways to avoid giving a prescriptive easement:
(a) give permission so the possession is not adverse
(b) put up a sign that says “you have my permission to use the land, but I can revoke it at any time.”
II. Land Transactions
A. Generally, in State vs. Buyers Service Co.:
1. no preparation of legal documents by a non-attorney
2. no title abstracts prepared for a non-attorney
3. no closings except under supervision of an attorney, or stop to consult if a party has questions of a legal nature
4. recording instruments as part of a real estate transaction or closing constitutes the practice of law, as it is an aspect of “conveyancing”