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Property I
University of Dayton School of Law
Watson, Blake Andrew

Real Property I
Professor Watson
 
Table of Contents:
 
 
Adverse Possession 1
Possessory Estates 3
Defeasible Estates 4
Future Interests 5
Doctrines of Destruction 8
Concurrent Estates 11
Marital Rights 13
Landlord and Tenant Law 16
Servitudes 28
Touch and Concern 35
Privity 36
 
I.         Adverse Possession
A.      Background and Statutory Period
a.        English law first recognized AP in 1275. Later transplanted to the newly independent U.S., it served as a method to resolve widespread land and title conflicts, especially in frontier areas where land was rarely surveyed and boundary lines were often unmarked.
b.        AP is a blend of statutory and case/common law. All states recognized a statute of limitations for recovering possession of land from a wrongful occupant. Some states require the AP to pay property taxes, others do not.
                                                               i.      Statute of Limitations differs throughout the U.S.
–          NE is typically 21 years
–          South and Midwest normally 10-15 years
–          California is 5 years
–          If within the number of years specified by the statute of limitations, the owner of the land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action in ejectment. Once the owner is barred from suing in the ejectment, the adverse possessor has title to the land. A new title is created by the operation of the law.
–          Once the statutory time has passed, the right of the original owner to enforce rights has also passed.
–          Some states shorten the period of time if the possessor entered under color of title or paid taxes on the property.
o        Four things exempt from adverse possession:
1.)      State
2.)      Highest charitable uses
3.)      Public uses
4.)      All other governmental agencies
c.        Once AP has title, it can be transferred in the same manner as any other title of land
                                                               i.      however, cannot be recorded at courthouse, because it did not originate from a recordable document, but rather by an operation of law
                                                             ii.      a Quiet Title action against the former owner barred by the SOL corrects this in that it shows title
d.        Does the AP have rights?
                                                               i.      The AP can sue another (junior) trespasser for ejectment
                                                             ii.      The AP has senior possessory rights over a junior trespasser
e.        Boundaries:
                                                               i.      The precise location of the claimed land must be identified in such a way that the boundaries may be ascertained and recognized
                                                             ii.      Absent proof by the claim over an exact location voids the claim because it then rests on speculation and conjecture
 
B.      5 Criteria for Adverse Possession (must satisfy ALL):
1)       Actual
a.        The AP must take actual possession of land
                                                                                                   i.      Must present physical possession of entire area claimed
1.        Mental enclosure of land does not constitute actual possession
                                                                                                  ii.      Continual acts of occupying, cultivating, erecting fences, or paying taxes must be established
                                                                                                iii.      Majority View: AP must physically use land in the same manner a reasonable owner would, given its nature, character and location
b.       Constructive Notice of Color of Title:
                                                                                                   i.      Court will say you are deemed to know about it even though you did not. Court treats you as if you knew.
c.        Color of Title:
                                                                                                   i.      Written instrument that is not required to obtain AP
                                                                                                  ii.      COT:
1.        Bona fide (must be reasonably relied on)
2.        Must describe land claimed
3.        Notice must be provided to true owner either actually (directly) or

ocation, and character of the land. However, successive periods of adverse possession by persons in privity can be combined to satisfy the statutory duration requirement; a.k.a. Tacking.
b.        Possession must be continuous for entire statutory period.
                                                                                                   i.      If owner re-enters property in order to regain possession, this will be an interruption of the adverse possession. The AP will have to start over.
c.        Temporary absence from land without intention to abandon possession will not break continuity element (i.e. flooding, sickness)
                                                                                                   i.      A person can be in continuous possession even though there are considerable intervals during which the property is not used.
                                                                                                 ii.      However, intermittent and sporadic occupancy will negate continuity.
d.        A possessor can transfer his/her right to another AP
                                                                                                   i.      Tacking: possession by two AP, one after another by be “tacked” if the two are in a “privity” with each other. Essentially, their periods of ownership can be added together for purposes of meeting the statutory period.
                                                                                                 ii.      No Privity: but if the two successive AP are not in privity (i.e. do not have some continuity of interest), then tacking will not be allowed.
EXAMPLE: A adversely possesses Blackacre for 15 years. He then abandons property. B enters for another 7 years. B cannot “tack” his holding period to A’s holding period