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

PROPERTY OUTLINE-DURHAM-FALL 2010

Possession

-Exercise of dominion and control over land
-Possessor is making use of the land as an average owner would taking into account the nature of
the land
-Actual Possession- physical occupancy or control over property
-Triggers the COA for adverse possession
-Constructive Possession- dominion or control over property without actual possession
-Peaceable possession- not disturbed by another’s hostile or legal attempts to recover
-Holds up against all except those with a better claim
-Courts defend possession except:
-Possession will not be held against a person if the possessor enter under the
the permission of the owner. Persons are estopped from attacking title of a
person they have benefited from.
-If a person takes something from another (possesses it) that person can not keep it
by saying that the person he took it from did not actually own it. In this
situation the person is estopped as well.

Ejectment

-Request to have the possessor ordered off the land
-Title overrides possession
-Plaintiff’s ability to recover rests on the strength of his own title
-Plaintiffs can’t win by showing Defects in defendant’s title
-Defendant can win by showing fault in Plaintiff’s title if Defendant has better title
-If neither party has title the courts will defend possessor except for exceptions above
-Ejectment must be brought before statute of limitations has run
-If statute has run already your COA action is trespass

Adverse Possession

-Rule: Title to real property can be obtained through adverse possession if the statute of
limitations has run and the possession is actual, open and notorious, continuous,
exclusive, and hostile
-Reasons for Adverse Possession
-Rewards people for making beneficial use of land
-Punishes people for sitting on their property rights
-Used to settle old land disputes
-Adverse Possession can be used both offensively and defensively
-Offensively- Requesting a Declaratory Judgement of Quiet Title by Adverse Possession
-Defensively- Claiming Quiet Title to land by Adverse Possession
-Running of the Statute of Limitations
-Accrual-statute begins to run as soon as adverse possessor comes into possession of land
-This is the point at which true owner could first bring suit
-Filing of suit does not stop period from running-you must pursue to judgement
-Tolling- running of statute is tolled if the person entitled to bring the COA at the time
the COA accrues has a disability
-Tacking- adding the previous possessor’s time on land to yours through privity
-Privity occurs when permission is given to second possessor by first
-First possessor must also have reached all the elements of adverse possession
-In case of inheritance whether intestate or probating will statute begins when person dies
-Actual Possession
-Must be actively using land-physical structures help-as a true only would given nature
-Triggers COA for Adverse Possession
-Typically adverse possessor will only gain title to the land they actually possess
-Actual possession of part can lead to constructive possession of whole as long as the
parts are contiguous and the part’s size is proportional to that of the whole
-Open and Notorious
-Whether true owner knows or could have known of the possession
-Possession must be sufficiently apparent to put true owner on notice of the trespass
-Acts must be conducted in a manner that an ordinary person would acknowledge claim
-Type of acts required depends on the type of land
-Exclusive
-Possessor is not sharing the land with true owner or public at large
-Want to keep out other possessors without your permission
-Two or more people can work together to gain title by Adverse Possession
-Continuous
-Adverse possessor’s claim must be continuous throughout claim
-Law does not require possessor to be present at all times
-Frequency and kind of acts required will depend on nature of land & its use
-Through privity tacking of multiple possessions may be allowed
-Hostile
-Does not refer to owner/possessor’s metal state does not imply animosity
-Possessor does not have true owner’s permission to be on land
-Possessor must intend to claim land and treat it as his own
-If tenant stays longer then lease she is not hostile because she entered with permission
-Permission from owner voids this element
-Can not claim hostility if you entered with permission unless owner knows you OR
-Owner can not give permission after the fact-must bring suit
-Connecticut Doctrine
-Most broad-Contains both Maine and Iowa Doctrines
-Act of possession itself is an ascertain of title
-Possessor’s

imitation is violated
-Words of Limitation- “as long as”, “so long as”, “until”, “during”, “while”
-Transferable, Devisable, Inheritable
-Reverter- Future interest in the grantor if express limitation is violated
-Reverter is always in grantor in Fee Simple Absolute
-Not Transferable or Devisable, but are Inheritable in grantor’s heirs
-Fee Simple Subject to a Condition Subsequent
-Defeasable in that it may last forever, but may end as well
-Qualified by an expressed condition subsequent
-Does not end automatically-Grantor must reclaim property-If he doesn’t it doesn’t end
-Words of Limitation- “but if”, “provided that”, “however if”
-Must be coupled with an express right of re-entry clause in the grantor
-Transferable, Devisable, Inheritable
-Right of Re-Entry- Future interest in the grantor if express condition subsequent occurs
-Right of Re-Entry is always in grantor in Fee Simple Absolute
-Not transferable or Devisable, but are Inheritable in grantor’s heirs
-If granting is ambiguous- courts grant fee simple subject to a condition subsequent
-Gives a definite time when hostile possession begins-When re-entry is attempted
-Fee Simple Subject to an Executory Limitation
-A Fee Simple Defeasable with the Future Interest in a Third Party
-Can use either Determinable or Condition Subsequent Words of Limitation
-Transferable, Devisable, Inheritable
-Executory Interest- Future Interest in a Third Party that can cut short prior estate
-Springing- comes directly from grantor
-Shifting- comes from a third party
-Not Transferable, but Devisable and Inheritable
-Life Estate
-Lasts as long as grantee lives
-Finite because it must end
-Default estate at common law (Now Fee Simple Absolute is default estate)
-Words of Limitation- “for life”
-Not Devisable or Inheritable because it ends at grantees death
-Transferable