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Property I
University of Dayton School of Law
Durham, James Geoffrey


I. Adverse Possession

A. 5 Elements:
1) Actual – Actual physical entry onto the land. This starts the statute of limitations.
2) Open and Notorious – The sort of possession that the true owner may be expected to make. It must be visible as to put the true owner on notice.
3) Exclusive – Adverse Possessor must be the only one using the property. If owner is also using it there can be no AP.
a. Tacking – One AP can transfer property to next AP if there is privity. Dad AP’s then passes to daughter or buyer.
4) Continuous – Uninterrupted use.
5) Hostile and Under Claim of right – Possessor cannot have permission to use.
a. Maine Doctrine – Knowingly wrongful act or will not back down if mistakenly possessed.
b. Connecticut Doctrine – Act of possessing is enough.
c. Iowa Doctrine – Must have good faith claim of right or color of title.

Disabilities/Tolling – The statute of limitations will not run against a true owner who is afflicted by a disability at the inception of the adverse possession.
Some states Toll statute of limitations until the disability subsides then starts the clock running for the 21 years. Others start SL running at AP but give the true owner 10 extra years to reassert his right in the land after the disability subsides.

Innocent Improver doctrine – Where a neighbor’s improvement on his land mistakenly encroaches on his neighbors land, the innocent improver doctrine balances the interests of the parties and attempts to settle equitably. May force neighbor to sell the portion of land that has been encroached upon if the cost of removing the encroachment out weighs the sellers interest.

Constructive Adverse Possession – If adverse possessor enters under an instrument that described a larger tract than he actually owned and then he only occupies a small portion of th

ldren, then their children, and their children until there are no children to receive it. Keeps the property in the family, lineal descendants or family bloodline. Grantor can limit the fee tail to only the male heirs of the grantee, fee tail male (or any other characteristic he/she wanted).
Accompanying Future Interest – Grantor has a Reversion

III. Fee Simple Determinable – FSD (POR)

“To A as long as, until, during, and while”
Fee simple unless a disqualifying condition is met then the property automatically reverts back to the grantor. i.e. O transfers property to A and his heirs so long as the property is not used as a tavern.

If stated condition is violated, Forfeiture is Automatic.