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Property II
South Texas College of Law Houston
Gershowitz, Adam M.

I. ADVERSE POSSESSION
a. A method of obtaining title to land from another, without first person’s consent.
i. A successful claim of AP bars original owner from ejecting the possessor, resulting in title passing to possessor.
ii. Adverse possessor may pass title to others; however, adverse possessor may not be recorded (generally harms attractiveness of property). Possessor must file suit to obtain quiet title on property. Judgment in quiet title suit gives recordable title.
iii. Elements
1. C – Continuous
a. Possessor uses the land in the same manner as the average user would use the land (ex. beachhouse, 6 weeks in the summer is sufficient).
b. Ø requirement to live there every single day. [EXAM QUESTION] c. “Abandoning” (or breaking) the property sufficiently breaks continuity.
d. “Interruption” – Being thrown out by the actual owner – sufficiently breaks continuity.
e. Lapse in continuity causes SOL to restart [EXAM QUESTION] f. Objective standard – would a reasonable, objective person consider possessor’s behavior continuous?
2. O – Open & notorious
a. Possessor is holding him or herself publicly as the true owner. This provides actual and true owner reasonable notice that the possessor is there.
b. Paying taxes.
c. Erecting a fence. [Common exam question] d. Erecting a mailbox.
e. Clearing the land.
3. A – Actual & exclusive
a. Must set foot on the land (no registered letters). Triggers SOL.
b. No residential requirement. Commercial use (removing minerals, operating a business) is sufficient if a reasonable use for land.
c. Constructive possession???????
d. Must be exclusive – “I am excluding the true owner of the property, and the general public from the property.”
4. H – Hostile
a. NOT angry. Without permission.
b. Claim of right or title without agreement or permission.
c. Color of title – a claim of ownership based on faulty/defective deed.
i. Conveyed by someone other than the owner
ii. Forged deed.
iii. MAJORITY OF JD do not require Color of Title for AP.
iv. DIFFERENT from “Claim of Title”
iv. After a statutory period, possession ripens into legal title.
v. Efficiency – fewer land disputes is better.
vi. Society values the expectations of those who have possessed and made productive use of land over time (at least more than it values the expectations of those who would let the land lie unused).
vii. “Ejectment” – suit pursued by property owner to remove an unauthorized possessor from the owner’s property.

viii. Interests are balanced through a statute of limitations (5-10 years), as established by statute.
1. Statute of Limitations
a. Runs against the prior owner of title.
b. Prior title holder has burden of ejecting the adverse possessor.
c. Government is an exception to this. Usually statute does not apply.
b. To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years there was an “actual” occupation under a claim of title.
i. VAN VALKENBURGH v. LUTZ (Ct.App.NY, 1952).
1. Dispute over Yonkers truck farm.
2. Court denied application of adverse possession based on lack of “claim of title” and lack of appropriate use, despite ∆ having cultivated a “farm” and maintaining a one-room domicile for more than twenty-five years.
ii. SOL doesn’t begin when he arrives, but when he begins to hold himself publicly as the owner of the land.
iii. Actual possession required as a means to provide notice to true owner of AP attempt. Constructive possession would not be good enough.
iv. “Record title” achieved when adverse possessor files a lawsuit to assert quiet title.
c. To claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another.
i. MANNILLO v. GORSKI (NJ, 1969).
1. Dispute involving home improvements which violate property boundary.
2. Demonstrates objective v. subjective application of intent.
3. Δ – intent is Ø important.
4. “Maine” doctrine – Ø intent = Ø hostile. Intent is a required element of AP.
a. “Nice guys finish last rule.
b. Subjective rule.
5. “Connecticut” doctrine – Intent/state of mind is irrelevant.
a. Objective rule.
b. MAJORITY RULE.
c. Hostility is still satisfied b/c the steps were left in place without permission.
6. Court = “Ø presumptive knowledge based on minor encroachment along a common boundary.” (15” across the line is Ø sufficient)
ii. EQUITY arrangement.
1. Remedy may Ø be cost-effective (cost of litigation vs. what you get in the end).
2. Normally, if you mistakenly improve land owned by your neighbor, doctrine of equity helps you by enjoining your neighbor to convey the land to you for market-value compensation (usually).
a. Exceptions:
i. If you intentionally violate your neighbors land, and you get caught. If neighbor insists on ejectment prior to SOL completion, Equity does little. You will likely have to remove your improvements.
ii. Not if owner’s land would be made less useable of substantial

a license to use, which is revocable at will.
d. It appears that most courts require exclusive use for prescription, but define it differently from the adverse possession requirement. “Exclusivity does not require a showing that only the claimant made use of the way, but that the claimant’s right to use the land does not depend upon a like right in others.”
iv. The public must be given both access to and use of privately-owned dry sand areas of the beach as is reasonably necessary.
1. MATTHEWS v. BAY HEAD IMPROVEMENT ASSOCIATION (NJ, 1984).
a. Public advocate argues that Δ is restricting membership to area residents only, limiting access to dry sand area in violation of Public Trust doctrine.
b. The court held that the Public Trust doctrine denies private property needs from preventing non-member access to public beach areas.
2. Public Trust Doctrine
a. Certain lands are held in trust, for the public, by the sovereign (State of NJ).
b. Dates back to Roman law – air, water & seas are common property owned by everyone, granting universal use.
c. Public waterways preserved for public use: fishing, recreation.
d. Under this trust, state has the obligation to manage lands in public’s interest.
e. Indisputable public access to water.
f. PT beach – “wet sand area” – water to high water mark.
g. What to do about dry sand areas? How to access them?
h. I → Does PT protect rights of non-residents to dry sands areas?
i. Proscriptive easements are about giving rights of use to parties who have paid for them.
j. Public Trust doctrine creates a similar right for the general public.
k. Technically, this is not proscriptive easements, though the functional difference is not easily discernable.
l. Holding applied only to land owned by Association, deferring decision on public use of pure-privately-owned land.

II. LAND SALES TRANSACTIONS
a. Land Sales Contracts
i. Like any contract, we’re looking for a “meeting of the minds.”
1. Offer made & responded. Results in a sales contract.
ii. Option Perio