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

Adverse Possession
1)                  Entry that is
2)                  Open and notorious
3)                  Continuous for the statutory period
a.       Operation of law so you still have to get the court to declare you hold title before recording it
4)                  Adverse and under a claim of right
What is Adverse Possession – how to recognize in a fact pattern?
–          Getting land by squatting on it, or exceeding your lawful boundaries
–          Key question is whether the party is asserting adverse possession is making use of land as true owner
Statute of Limitations on adverse possession (SOL)
–          Efficiency
–          Certainty
Entire point of adverse possession is that they own it, but I want it
Texas Adverse Possession
–          Three years with titles
–          10 years without
Adverse Possession against the government
Common law – no adverse possession against the government
Claim of Title
–           State of mind
Color of Title
–          Claim founded on a written instrument (a deed, a will) or a judgment or decree that is for some reason defective and invalid
–          (As when the grantor does not own the land conveyed by deed or is incompetent to convey, or the deed is improperly executed)
–          Constructive possession only under color of title, adverse possession is actual possession
State of Mind – hostile vs. mistake
–          Objective (Lutz dissent, Manillo)
o   Irrelevant – intent of party is irrelevant
§  Too hard to figure what AP was thinking
§  People are inclined to lie so shouldn’t give them a chance
–          Good faith – inadvertent
o   AP has a good faith belief that he actually owned the property
§  Limits number of AP cases
–          Aggressive Trespasser (Maine Doctrine)
o   Requirement for adverse possessor to intend to take something he/she knows is not his and if informed of true owner, must not relinquish
§  So if you make a mistake, and are told so, and then you say you will back, NO ADVERSE POSSESSION
·         Rewards bad behavior and allows for disagreement
–          Howard v. Kunto
o   Tacking – two different parties can tack to meet continuous requirement
o   Open and notorious and claim of right blend together
o   Good faith belief it was his property
–          Contract with a minor is voidable
–          Can’t tack disabilities
–          You cant pick or choose them either. First one wins.
–        Adding of time the 1st adverse possessor used the property to the time the second possessor used the property.
–        Requires privity between the first and second person, in order to tack time together, if there is no privity, then you cannot put the time together
Tacking (Disabilities)
–          Infants and the mentally ill are generally disabled
o   Persons in prison
o   Military servicemen
–          SOL for an AP claim will not run against a TRUE OWNER who is under a legal disability when the AP commences.
–          If the TO (true owner) of property is under a disability, the SOL will not run against him or her until the disability is removed. The statute is said to be tolled
–          The disability must exist on the date of the adverse possessor’s entry onto the land
–          There is no tacking of disabilities
AP – chattels and personal property
–          Action must accrue before the SOL can start to run
–          Demand refusal rule – the statute runs only form the date of the refusal and the statute was tolled beforehand
–          Rule of due diligence – actually have to be trying to get the property back,
EX. Of preventing claims for AP – Rockefeller example  – Sidewalk closed for one full day a year to avoid adverse possession
O’Keefe Case
–          When does clock start ticking on adverse possession?
o   Knew (objective standard
o   Should have known (

§  Sets out the terms of the listing
o   Agent – a sub-agent of the broker
–          Broker’s duty to buyer
o   Latent defect – those not discoverable by a buyer
§  Broker has duty to refrain from intentional misrepresentation
o   Material defect  – one that significantly affects the value or use of the property
–          CAVEAT EMPTOR
–          Time for performance – seller has time to rectify or remove the defect
–          Types of Listings
o   Open Listing – Seller may still use another broker to sell the listing
o   Exclusive Right to Sell – Broker always gets the commission
o   Exclusive Agency Contract – Seller is free to find own purchaser, no commission if sold without broker
Statute of Frauds
A) Sale of land under SOF
1.      Writing
2.      Signed by the parties to be bound
B) Exceptions
1.      Partial performance
2.      Estoppel- based on fairness and detrimental reliance
C) Hickey v. Green
1.      Signed and endorsed check counts as a writing under SOF
2.      Hickeys granted specific performance in form of conveyance because Hickeys sold their own house under detrimental reliance (estoppel) to Green’s offer. Check also considered partial performance.
3.      Remanded to determine whether restitution was necessary instead of specific performance if Hickeys obligation to sell house had changed.       
Statute of frauds – requires that deeds and real estate K’s be in writing and signed by the person to be bound
–          Above SOF elements need not be in contract, but can be in other writings
–          Material terms must be in contract