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Property II
South Texas College of Law Houston
McGreal, Paul

PROPERTY II OUTLINE
McGreal 
ADVERSE POSSESSION
 
Policy Reasons FOR:
beneficial use of land
prevent windfall to T.O.; protect reliance of adverse possessor
promotes certainty
protects 3rd parties
 
Policy Reasons AGAINST:
disturbs land records
wasteful supervision
encourages trespass; unfair
 
Elements: 
Actual Possession of the land.
Continuous—no physical interruption (like ousting or abandonment) or court action; whatever is appropriate for the specific piece of land.
Open & Notorious—visible so as to give T.O. notice; treat land as the T.O. would.
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.
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.
Exclusive possession—can’t share possession w/ anyone else.
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 posses

onal covenants and can only be breached at the time of the delivery of the deed.
(4)—(6) are real covenants and can only be breached after delivery of the deed.
(1)—(5) are the “usual covenants”.
(6) is not required and is rare in the U.S.
Special warranty deed—contains the above covenants, but grantor is only responsible for title defects that arise during his ownership.
Quitclaim deed—conveys whatever estate the grantor possesses including all title defects. (Does not convey marketable title.)
 
*Court looks at entire document to determine intent.
*Can use extrinsic evidence to supplement description if purchaser is a BFP. 
Delivery—occurs when the grantor manifests an intent that the deed is immediately operative.
Manual delivery not required, but shows intent.
Presumptions:
If grantor retains possession of deed, no delivery. (rebuttable)