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

Blackman_Property II_Spring_2013
Elements of Adverse Possession
1.       Entry
2.       Open and notorious – owner must know – doesn’t have to be hostile but must be well known
3.       Continuous for statutory period – generally 10 years in Texas – 3 years with title; must use land in a way consistent with the way land would be used by owner
4.       Adverse under claim of right -must be without consent of owner
Van Valkenburg v. Lutz – NY Court Appeals
over right of way to Lutz's land over Van Valkenburg's property
1.       Suit 1 – Prescriptive easement – Lutz won
2.       Suit 2 – Ejecting Lutz from land – VV won
3.       Majority – no cultivation of land – Lutz did not have possession – courts have moved away from this
4.       Dissent – Lutz had done significant amount of work on land – built little house for brother Charlie on it, cultivated some of it – court ignored evidence
State of Mind for Adverse Possession
1.       Objective – majority view today; state of mind is irrelevant
Dissent in VV, Majority in Manillo – (accidental adverse possession)
2.       Good faith – good faith in occupying land matters
3.       Aggressive Trespasser – Hostile – minority view – Mr. Robinson in Spring
Color of Title – when one has some document showing claim to land, usually bad title because someone sold land they didn't own –
TX -Owner must bring suit against squatter within 3 years with color of title; 10 years without color of title
Manillo v. Gorski – 1969 –  NJ SC  majority view today
Boundary Dispute – D accidentally encroached 15 inchers into P's property
Maine Doctrine (old) had to be hostile possession, not accidental
Connecticut Doctrine – doesn't look to motivation – can be accidental; court favored this
Mechanics of Adverse Possession
Howard v. Kunto – Washington Court of Appeals 1970
several people had summer homes in area with title to house (or lot) next door instead of their own
Question:  Is tacking OK? – combining time of ownership from different owners
1.       Tacking (occurs when land is adversely possessed by a series of people, no one of whom occupies the land for the statutory period) is OK if privity of contract between owners – transfer of deed from one to other
Exception:  if true owner has disability (under 18, mental disability – can't stack disabilities though – only 1st one counts)
2.       Statute of Limitations – had not run due to tacking
3.       The use of a summer cottage only in summer is uninterrupted possession sufficient to establish adverse possession
Prior adverse possessor can eject later squatter if he hasn't gained title yet
If squatter abandons property, he has to start over if he reoccupies – occupancy must be continuous
However, if squatter is evicted by force, adverse possessor doesn't lose continuous possession – but clock stops while he's not occupying property
O'Keefe v. Snyder – SC NJ  1980
D contended he had acquired 3 of O'Keefe's paintings by adverse possession
She alleged they were stolen in 1946 but she never reported them stolen
D alleged 6 year SOL had tolled; Court ruled that SOL starts when injured party discovers or should have discovered facts which form the basis for a cause of action
Elements of A Sales K -which is an executory K – no completed yet
1.       Price – doesn't have to be in there – can be fair market value or determined later
2.       Description of Property
3.       Good title
4.       Warranty of title & restrictions on title
5.       Closing Date
6.       Prorations
7.       Signatures of buyer and seller – satisfied Statute of Frauds
Steps in Buying House
1.       Buyer decides to buy house
2.       Search and find property
3.       Negotiations – executory K, earnest money, contingencies – inspection, mortgage
4.       Title Search by title co – title is legal relationship between person and land
5.       Closing
6.       Receive deed at closing – instrument by which title is transferred; does not have to be recorded
Rent Seeking – when groups (like TREC) lobby legislature to pass laws in their interest
Licari  -Conn. Appeals Ct
Realtor brought in co broker who knew area to help sell house for heirs
Co broker bought house himself and resold it at large profit
Court ruled breach of duty and fiduciary duty to client:
1.       Realtor obligated to act in best interest of client
2.       No self dealing
3.       Honesty, disclosure of best price (and all offers) required
Statute of Frauds
1.       Property Sale or lease of greater than 1 year – SOF applies
2.       Contract must be in writing with signatures of parties to be bound
3.       Must have description of real estate
4.       Usually price(not always required)
Exceptions to SOF
1.       Part performance- when one of the parties performs particular acts (like giving buyer the keys to house)
2.       Estoppel – when buyer relies on agreement to his detriment; ex:  sells his house in anticipation of buying this one
           when unconscionable injury would result from denying enforcement of the oral K after one party was induced to

Jones (seller) v. Lee (Buyer) – NM Court Appeals 1998
buyer backed out of K and seller ultimately sold house for $70K less than K with Lee
Damages:  difference between K price and market value at time of breach
Special Damages – foreseeable ones – interest on mortgage (court assessed 1/2 since seller continued to have benefit of living there
Punitive – seller harassed buyer so punitive damages were awarded
Kutzin v. Pirnie     NJ SC 1991
BLL:  defaulting buyers are entitled to restitution of deposit money in excess of damages incurred
Departure from CL which said seller could keep all of deposit;  follows restatement
However, if there's a liquidated damages clause in K, this doesn't apply
Exception:  if earnest money is > 10% can be unjust enrichment
1.       Present Covenants – suits must be brought within 10 years of purchase
  a.  Covenant of Seizen – grantor is lawfully seized in fee simple
  b.  That he has a right to convey the fee simple
  c.  That premises are free from all encumbrances
2.       Future Covenants 
  a.  Covenant of General Warranty – that the grantor and his heirs and assigns will forever
       warrant and defend grantee and her heirs and assigns
  b.  Covenant of Quiet Enjoyment – that the grantor and his heirs and assigns will guarantee
        the quiet enjoyment of the premises to the grantee and her heirs and assigns
  c.  Covenant of Further Assurance – that the grantor and his heirs and assigns will, on
       demand of the grantee or her heirs or assigns, execute any instrument necessary for the
       further assurance of the title to the premises that may be reasonable required
3 Types of Deeds
1.       General Warranty Deed – warrants against all defects (in title) – gold standard
2.       Special Warranty Deed – warrants against grantor's acts
3.       Quit Claim – no warranties
Elements of Deed
1.       Grantor
2.       Grantee
3.       Words of Grant
4.       Description of Land
5.       Signature of Grantor (Statute of Frauds)
6.       Attestation (Notary)