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

Property Outline- Mirow Fall 2001
Adverse Possession= if w/in the # of years specified in the state SOL O not try to eject the possessor the O is barred from bringing an action, the APor then has title
   -being in exclusive possession for a period of time must be:
-Open and notorious, means you must use it in the same manner the owner would
       -This serves to put TO on notice
       -This is an objective standard (are you using it in a way that would put someone on
-Continuous, means it can’t be intermittent, but not mean constant
       -ex: summer cottage and you go only during the summer
            -is AP b/c you are using it as TO would
-Claim of Right time beg @ taking regardless of state of mind, in some way indicated    
APor owns good/bad faith not matter
      -3 dif tests for this
            -Good faith: must enter w/ good faith belief the property is yours
            -Aggressive trespasser: know it’s not yours (can be linked w/policy reas. for AP)
            -state of mind not matter as long as entry you become possessor
-Hostile/adverse is not a state of mind
       -Hostile to legal interest TO has in the property
       -Not subordinate to TOs consent
            -Not there w/permission
       -Maine view is that you must know what you are doing and intend to take it
            -Knowing taking,
 -Color of title means you’ve got some document/writing/or statement you rely on that
       you think gives you that property 
            -TX and FL have this, but its not absolute its another thing that can lower the SOL
               -see TX stat sheet
-What parts must be in possession?
    -Constructive Possession
       -Possession of a reasonable part is possession of the whole
       -A document giving a certain portion can give CP to the whole
       -CP can only occur if one has CP
 -Related to SOL, if you wait to long to get an item back then your claim to that
AP is an actual entry giving exclusive possession that is open and notorious adverse and under a claim of right/title and continuous for the statutory period
The goals of AP:
 -protect title
 -bar stale claims
 -reward productive use of land
 -honor expectations
-Who must I AP against to be an APor?
 -Not usu work against concurrent owners (TiC/JT use ouster there)
 -Not run against FI holders until possessory
       -Generally not AP against remaindermen, the interest must be possessory
 -Not run against those w/a legal disability at the time of the inception of the AP
        -Insanity, infancy minority
-Can’t tack disabilities from owner’s side to defeat AP
       Ex: one nut dies and goes to an infant and SOL runs the infant is SOL
How do we get to the required statutory period?
 -Tacking= the idea that as an APor to get to statutory period you need to have to get title
       -Can add my AP time to the previous APors time
       -Need some sort of privity between APors
            -Ex: A an APor sells to me B
                      -Tack A’s time onto mine
Where are the exceptions, situations where AP does not wk?
 -Government owned land
        -Any level of gov.: Fed. state, county, municipal
            Ex: build house on city park and family lived there for 100 years; it’s still the 
Why dif rule for AP against the government?
   -b/c @ CL time did not run against the king/sovereign
   -policy perspective is that government land is held in trust for the people
       -can’t let private people take it, it belongs to everyone
   -economic interest, how much federal and state land is there in the country? Lots!
       -cost to make government keep good track of who’s on land would be very high
   -Land registered under the Torrens System
        -Use certificates of title, no one can AP your land against you
Boundary Disputes
 -ME doctrine
     -if APor mistaken & wouldn’t have APed knowingly, then not wk
     -APor must have intentional. Knowing taki

d of the period
       -still no tacking of disabilities
   -tacking is available, but still no tacking of disabilities
Disability SOL basically 25yrs
-AP for 25yrs while TO is disabled and it’s yours
-Recognize that there is a graduated scale in TX
   -TX AP code only covers REAL property
   -know there are a number of factors to check off in determining SOL for TX
       -Say AP yrs range from 3-25 yrs depending on the factors
-generally AP for each period
   -then special requirements
       -if you meet them they reduce the SOL
            ex: 3yr period of limitation -have title/CoT
                  5yr need deed, cultivate, and pay taxes
                  10yr cultivate, use , enjoy
                        -not necessarily need title, but limited w/out
Sale of Land
Title abstracts- history/rec of how the T is transferred, succession of docs
   -a lay individual assembles all of the recs pertaining to the property and re-indexes
     them and assembles them into a more abbreviated format
      -an abstract of a deed will give the names of gor and gee, date of execution and rec,
        description of prop, consideration given, and the names of witnesses
         -once this is done it can just be updated at subsequent exchanges
Broker- S signs K w/Br giving rt to list and show property to B’s
   -earn commission from seller
       -as such they’re agents of the seller
2 rules for when a broker gets paid:
1.      traditional-as soon as K signed get commission, whether its eventually closed or not
2.      modern-no commission until closing