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Property II
South Texas College of Law Houston
Mirow, Matthew C.

I. Theory and elements of Adv Poss:
 
1275 stat created adv poss- a possession of land, even if tortuous, for the prescribed time period became a protected ownership, barring an action for recovery of land where ~P waited to long
policy of rewarding those using the land in a way beneficial to the community
 
Holmes-if a man fails to enforce his rights, has no compliant if the law follows his example
 
possessor has come to expect cont’d access to the prop and True owner has fed that expectation by their acts /failure to act
 
Van Valekenburgh
Yonkers NY
Lutz family bought a lot in 1912, began to use the adjoining prop in 1921-the traveled way-bad blood btw neighbors VV, they bought the lot in 1947, tried to kick out the Lutzes [never took possession] Ct held the Lutz family had an ‘actual’ occupation under claim of title b/c they and no others occupied the prop for the requisite period to gain title by adv poss
 
adv poss
·        actual entry
·        exclusive possession
·        open and notorious
·        adverse and under a claim of right
·        continuous for the stat period
 
e.g. owner had color of title, used it as true owner would, paid tax on it, sandlot for commercial purpose, used as such, had c/a against those using prop w/o his permission-even though did not reside on it nor use it for long periods of time44
 
Probs pp 137
2 lots, sold by invalid deed by 3p to ‘bona fide purchaser’, occupied for the stat period, he gets prop in quiet title action
 
Mannilo
~P___^D in trespass, counter suit for adv poss
TCt concluded that ^D had encroached 20 yrs before the institution of suit and that the intrusion was
1.exclusive
2.continuous
3.uninterrupted
4.visible
5.notorious
6.against the interest of the true owner
exhibiting the requisite hostile possession to obtain title by adv poss, the App Ct held that there was no requiremt that the adv poss be knowingly intentionally hostile, just that it be exclusive, continuous, visible and notorious, regardless if its under a mistaken claim of title
 
Kunto
prop at a summer cottage, Kunto built house one lot over from their deeded land, they were found to be in successful adv poss of the prop for the requisite time period b/c they used the prop as a True owner would-thus satisfying the requirement of continuous
the Kuntos were allowed to tack their predecessor in interest’s time of possession onto their time of possession to allow them to keep title by adv poss [Kunto had not owned the prop for the requisite period when action began] b/c prior possessor had been in adv poss and there was privy btw the prior and Kunto, Kunto was allowed to tack the prior’s time onto his to prevail in adv poss claim
privity –modified by the Ct to say that there must be a reas connection btw successive occupants in adv poss to assert a superior claim over the true owner
 
pp 150 Note cases
cannot tack if there is an ouster, or any other event which disrupts the continual adv poss
 
If some one loses an adv poss action, they are entitled to reimbursement by the true owner for the cost of improvements-other wise its unjust enrichment
·        if the encroachment is mistake  the Cts will weight the hardships of dispossession of the adv poss-in the Kunto case it would have meant moving a house,
·        if the encroachment is trivial the ct will prob d

L, ^D arg that prep of deeds is not UPL
Ct held that it fell w/in the def’n of the practice of law-prep of deeds, notes, mortgages, notes and other legal instruments related to mortgage loans and the transfer of real prop
title search is the prac of law b/c it triggers RELIANCE, on the condition of the quality of title, a mistake in title is a big mistake
the Ct held that closings can be done w/o a lawyer, but should be done w/ a lawyer present b/c ability to furnish legal advice
prep of recordings must be done under the supervision of a lawyer
 
UPL-closing w/o lawyer-used to be req’d b/c the forms had to be explained by a lawyer
now brokers req’d to give notice that you may need a lawyer, but can continue w/o them
 
SOF-stat of frauds
1677 drafted, codified into the UCC and State laws
·        be signed by the parties intending to be bound
·        description of the prop
·        the price-not always necessary, can be inferred [ct inferred reas price, fmv, etc] two principal exceptions-
1.part perf used to prevent injurious reliance on a K, e.g. if you paid for the prop, took possession, or made improvements showing that all was done in reliance on a K
2.estoppel unconscionable injury would occur if the K was not enforced, one party is at a serious disadvantage b/c of the other party’s inducement
 
pp 563
Hickey