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Property II
South Texas College of Law Houston
McGreal, Paul

PROPERTY II OUTLINE
McGreal
 
I.                   ADVERSE POSSESSION
 
Policy Reasons FOR:
1.      beneficial use of land
2.      prevent windfall to T.O.; protect reliance of adverse possessor
3.      promotes certainty
4.      protects 3rd parties
 
Policy Reasons AGAINST:
1.      disturbs land records
2.      wasteful supervision
3.      encourages trespass; unfair
 
Elements:
 
1.      Actual Possession of the land.
2.      Continuous—no physical interruption (like ousting or abandonment) or court action; whatever is appropriate for the specific piece of land.
3.      Open & Notorious—visible so as to give T.O. notice; treat land as the T.O. would.
4.      Hostile & Adverse—intent to claim the land; no permission from T.O.
·        Majority: hostility is implied by meeting other elements. (Supports reasons FOR adverse possession.)
·        Minority: hostility must be directed toward T.O.
5.      Claim of Right—thinks he owns the land.
·        Majority: doesn’t consider good faith of adverse possessor; hostility and claim of right are implied by meeting other elements.
·        Minority: adverse possessor must have good faith.
6.      Exclusive possession—can’t share possession w/ anyone else.
7.      Statutory Period—(C.L. is 20 years.)
 
Color of Title: the adverse possessor honestly believes he owns the land he possesses, but the document (deed, will, etc.) is actually defective. 
·        Color of Title eliminates hostility & claim of rt. elements.
·        Constructive adverse possession = w/ color of title, adverse possession of part of the tract gives possession to all of the tract described in the document; w/o color of title, you only get title to the portion of land you actually possess. (Depends on jurisdiction.)
·        (Some jurisdictions)—you can claim under adverse possession the property you’re on by mistake if survey was mistakenly read.
 
Tacking: if adversely possessed land is sold, conveyed or devised (privity of estate), the period of time of the previous adverse possessor can be “tacked on” to the period of time of the current adverse possessor.
·        does NOT apply to one adverse possessor who ousts another adverse possessor.
Example: If AP1 conveys, devises or sells property to AP2, and AP1 + AP2 = Statutory Period, then AP2 has title to property by adverse possession (assuming all other elements are satisfied).
 
Tolling: if adverse possession begins when the T.O. is a minor, insane, etc., the statutory period does not begin to toll until the T.O. reaches the age of majority, becomes sane, etc. (Only applies if incapacity is in place before adverse possession begins.)
 
*An adverse possessor has all the rights of the T.O. except against the T.O.
*Title by adverse possession isn’t marketable until title is quieted by a judgment.
*Adverse possession does NOT extinguish an easement.
*Adverse possession only applies to non-public land.
*Adverse possession by a co-tenant must be above and beyond their normal use and possession.
*(Some jurisdictions) require adverse possessor to pay property taxes for statutory period.
 
II.                 CONVEYANCING
 
Elements:
 
1.      Valid deed—(1) grantor’s signature (2) names of grantor/grantee (3)description of property (4) interest conveyed (5) intent to transfer (ex: habendum clause) (6)acknowledgments (for recording purposes only).
3 types of deeds:
(1)   General warranty deed—contains the covenants of (1) seisin (possession/ownership), (2) right to convey, (3) against encumbrances, (4) quiet enjoyment, (5) general warranty, an

No, go to #7.
7.      If escrow agent is the grantor’s agent (ex: lawyer), no delivery.
If escrow agent is a stranger (ex: bank), go to #8.
8.      Does the grantor retain control over the triggering of the condition? Yes, no delivery. No, delivery occurs when condition is satisfied, go to #9.
9.      Has the condition occurred? Yes, delivery. No, go to #10.
10. Can grantor take deed back? If written agreement prevents him from taking back deed, grantor can’t take back deed. If no written agreement preventing him from taking back deed, grantor can take back deed.
 
*If no evidence that grantor retained a right to recall deed, court assumes that he did.
 
3.      Acceptance—gifts of land are deemed accepted, unless otherwise indicated.
 
 
Doctrine of Equitable Conversion: (C.L.) the risk of loss during the time between the land sale contract and the closing falls on the buyer unless the contract states otherwise.
·        Buyer is the equitable “owner” of the property.
·        Seller is the “owner” of the purchase price of the property.
(Minority Rule: Seller bears risk until buyer takes possession or title.)
·        Material destruction: buyer can get $ back; contract rescinded; or can go through w/ K and get abatement of price
·        Immaterial destruction: K is still good but buyer can get lower price.
 
*If seller did not delivery good title, risk of loss is on seller even if buyer is in possession.