PROPERTY II OUTLINE ORTIZ FALL 2003-
I. ADVERSE POSSESSION-
§ Occupier of another’s land gains the occupier title, BUT only if the occupation is wrongful.
§ Must actually possess the property and use it as an owner of the property would use it.
§ The true owner must be excluded.
§ If a landowner does not bring an action to an AP’er within the statutory of limitation period then he is barred from bringing an ejectment action.
§ ELEMENTS-
§ 1.ACTUAL – Actual entry giving exclusive possession, that is physical occupation exclusive of the land owner.
o Making appropriate use of the land as it is situated.
Physical possession to what degree-
– Ex. fencing a parcel
– Maintains visible marks of use all over it.
– Puts substantial structures on it.
– Improvements of the land.
§ 2.OPEN AND NOTROIOUS- The true owner must have some kind of notice. Making your conduct of possession open and notorious.
o Visible possession to put the owner on reasonable notice.
o Possession that gives visible evidence to one on the surface of the possessed land.
§ 3.ADVERSE AND UNDER A CLAIM OF RIGHT- Must assure that the person trying to adversely possess is not in a position subordinate to the true owner.
o Must be Hostile- must be against the true owner’s interests.
o Ex. Must be adverse. Cannot adversely possess land that you have permission to be on.
o Claim of Title Requirements-
o Three Standards
1. Objective
2. Good Faith
3. Aggressive Trespasser Standard—you knew that you did not own the land but did not care.
– 4. CONTINUOUS FOR THE STATUTORY PERIOD-
– appropriate to the subject of the land.
– Unchanged type of use.
– Possession of one person can be tacked to that of another if they have privity between them.
– Must continue without significant interruption for a period at least as long as the statutory limitation period.
– Significant interruption definition depends on the nature of the land.
– Seasonal land such as a vacation home- seasonal use is usually considered to be continuous.
– Brief periods of absence such as work, overnight stays and vacations are not cons
t X years been actual occupation of the land.
Ex. A and B own adjacent lots.
A erects a fence on B’s lot 3’ feet beyond what she thought the boundary line.
– Fence is there for the period of limitation
– A owns the strip of land by AP
– B has land surveyed and notifies A. A tears down the fence and erects on where it should have been in the first place.
– 3 yrs later A sues to eject B from the 3’
– A wins because she owned it through AP and B has not had the 3’ for the duration of the limitation period.
MISTAKEN BOUNDARIES-
Manillo v. Gorski-
– D entered land under K to purchase; in 1946 D’s son made made improvements to the home including steps to replace old ones.
– Steps encroached 15” on P’s property.
– P’s sues for injunction against D’s trespass.
– D counters with argument that gained ownership through AP,
