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Property II
South Texas College of Law Houston
Blackman, Joshua Michael

Property Outline

Fall 2012 – Blackman

Chapter 2: Subsequent Possession

A. Adverse Possession

a. The Theory and Elements of Adverse Possession

i. Synthesis of statutory and case law

ii. Two broad requirements

1. Expiration of the relevant statute of limitations

a. Statutory in nature

2. Adverse possession during the limitations period (infra)

iii. Rationales for adverse possession

1. Sleeping theory

a. By failing to bring a timely action, adjudicating stale claims becomes very difficult

b. Slothful owner ought to bear risk of losing property if he doesn’t care enough to assert ownership

2. Earning theory

a. People who use land productively and beneficially for a long time should be rewarded

b. The adverse possessor has certainly earned some interest in the land

c. Adverse possessor develops expectations of continued possession

3. Stability theory

a. Adverse possession enables disputes or doubts about land titles to be cleared expeditiously by delivering title to the person who has occupied the land as if he was the true owner for a long time without any objection

iv. The running of the statute of limitations not only bars an action by the erstwhile owner, but also vests a new title, created by operation of law, in the adverse possessor

1. Transfers interest in lad without consent of prior owner; even in spite of the dissent of such owner

v. Elements:

1. An entry;

a. The entry creates the cause of action (times begins to accrue)

b. Some cases suggest that entry shows that an interloper is earning some rights by working the land, making it more productive

2. Open and notorious;

a. A reasonably attentive owner would notice

b. Reflects the sleeping principle

c. Test of notoriety is objective

i. If adverse possessor acts would be noticed by an ordinary person, owner is said to be on notice

ii. If owner is aware of adverse possessor, then obviously the entry is notorious

d. Underground occupation

i. Likely necessary to prove owner knew of the occupation, or at least know of the underground space and that it was accessible by outsiders

e. Subsurface minerals

i. Adverse possessor acquires title to subsurface minerals if true owner had title to them

ii. But if minerals owned by someone other than subsurface owner, adverse possessor only acquires title to the land

f. Boundary Disputes

i. Some hold that encroachment onto land of neighbor are not open/notorious if encroachment is of a small area and is not “clearly and self0evidently” an encroachment

ii. If this is the case, limitations does not begin to run until owner has actual knowledge of the encroachment

iii. Oral agreement to settle boundary is enforceable if neighbors subsequently accept the line for a long period of time

1. Doctrine of acquiescence

a. Long acquiescence is evidence of an agreement between the parties

2. Doctrine of estoppel

a. When one neighbor makes representations about the location of a common boundary; and the other then changers his position in reliance on the representation or conduct

3. Continuous for the statutory period; AND

a. Does not have to be literally continuous

b. Permitted to come and go in the ordinary course given the nature of the property in question

4. Adverse and under a claim of right

a. Must occupy without the consent of the owner and with an intention to remain

b. Sometimes called “hostility” but does not imply malice or ill will

c. Mental state theories:

i. Subjective: good faith occupation

1. Adverse possessor must have a genuine, good faith belief that he owns the occupied property

2. Possessors who know that they are not occupying their own property can never acquire title

3. Criticized because it rewards slothful owner, penalized productive occupier who lacks good faith

ii. Subjective: aggressive trespass

1. Occupier knows the property is not his own by intends to claim it nevertheless

2. Rarely applied today

iii. Objective: state of mind irrelevant

1. Courts focus on two things:

a. Lack of permission; AND

b. Whether the occupier’s acts and statements objectively appear to be claims of ownership

2. Have you acted like a true owner?

d. If the adverse possessor disclaims ownership in order to persuade owner not to sue, the possessor has stopped being adverse

e. Maine Doctrine

i. Occupier is not possessing adversely if he occupied under a good faith, but mistaken, belief that the land is his, but he would have occupied if he had known the true facts.

ii. Not quite the same as the subjective good faith test

iii. Criticized as being perverse

1. Encourages perjury

2. Rewards intentional trespasser, but not the honest one

3. Requires difficult judgment about what someone’s intent was

iv. Minority rule

f. Claim of title

i. One way of expressing the requirement of hostility or claim of right on part of adverse possessor

g. Color of title

i. Claim founded on a written instrument (deed/will) or a judgment or decree that is defective and invalid

ii. In some states, a color of title is essential to acquiring title by adverse possession

iii. Even if not a prerequisite, has important advantages for adverse possessor

1. Sometimes a shorter statute of limitations is available if you have color of title

iv. Actual possession under color of title of only a part of the land covered by the defective writing is constructive possession of all that the writing describes

b. The Mechanics of Adverse Possession

i. Tacking

1. Occurs when the land is adversely possessed by a series of people, no one of whom occupies the land for the statutory period

2. Privity requirement

a. Needed in order to tack on time period of other adverse possessors

b. Occurs when there is a valid transfer of title

c. Privity means the voluntary transfer from the first possessor to the second possessor of either an estate in land or actual possession of the land

3. Issues with tacking

a. Continued litigation; everything gets messed up

4. Texas Code on Tacking – 16.023

a. To satisfy limitations period:

i. A peaceable and adverse possession doesn’t need to continue in same person

ii. There must be privity of estate betw

’s agent

ii. Duty is to follow the principal’s directives

g. Alternatives and supplements to a traditional brokerage arrangement

i. Buyer’s brokers

1. Prospective buyers hiring their own brokers

ii. Dual agents

1. Owes a duty to both buyer and seller

2. Creates a lot of conflicts of interest

C. The Contract of Sale

a. The Statute of Frauds

i. Primarily raised as a defense

1. Either no written contract to back up oral contract

2. No signing by the party to be bound

ii. Doesn’t need to have a price, just need to know what is being purchased

1. Can’t white something out…must actually draft a new document

iii. Exceptions

1. Estoppel

a. Sounds in equity

b. If someone make a promise, you rely on it to your detriment, then you can invoke it

2. Partial performance

a. Acts of the parties satisfies the evidentiary requirements

b. Acts of performance

3. Courts differ on what is required to satisfy the exceptions

a. Take possession

b. Improvement to the land

c. There is not a hard/fast rule

4. Simply because there is no written contract for land does not mean you will be able to get out of it

iv. Texas Prop Stat. 26.01

1. Promise or agreement not enforceable unless it is un writing and signed by the person to be bound

v. Electronic signatures

1. Generally allowable

2. For property, usually needs to be in handwriting

3. Tex Prop Code 322.005

b. Marketable Title

i. Implied condition of a contract of sale of land is that the seller must convey to the buyer “marketable title”

1. Title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent, and intelligent person

2. Prevents someone from getting into a house and realizing that something is there that they were unaware of

ii. Title can still be marketable even though restrictions exist

1. Examples:

a. The existence of a zoning ordinance does not make title unmarketable

i. Difficult to determine just what every ordinance is

ii. A simple title search won’t necessarily discover it

b. The existence of a restrictive covenant does make title unmarketable

c. The violation of an ordinance is an encumbrance that makes title unmarketable

i. Because the second someone gets the property, they can be sued

d. The violation of a restrictive covenant makes title unmarketable