Select Page

Property I
University of Dayton School of Law
Kreutzer, Jacob R.

 
Property I
Prof. Kreutzer
Summer 2015
Takings
 
 
The Takings Clause limits takings to those for public purpose and requires just compensation for all takings. The clause applies to all forms of government and all forms of property.
 
The public use requirement is satisfied so long as there is a conceivable public purpose for the taking
·         Taking must be necessary to accomplish public purpose
·         Property remains subject to public oversight after transfer
·         Condemnation itself produces public benefits
 
Three principal per se tests for regulatory takings:
·         A taking occurs whenever a regulation permanently dispossesses an owner by stripping the owner of the right to exclude others.
·         A taking does not occur whenever a regulation does no more than duplicate the result under the prior applicable law of nuisance, even if the regulation deprives the owner of all economically viable use of the property, on the theory that the owner never had the right to use the property in such fashion.
·         A taking occurs when a regulation deprives an owner of all economically viable use of the property, except when the regulation does no more than duplicate prior nuisance law.
 
If per se rules don’t dispose of case, a balancing test applies. Balancing test involves assessment of multiple factors:
Degree of investment backed expectations are diminished
Nature of government regulation
Breadth of public benefits achieved
Breadth of impact of regulation
 
Special rules apply when governments seek to impose conditions on issuance of land use permits. If a condition, by itself, would be a taking, it is saved only if it bears a direct and essential nexus to a valid purpose underlying the land use permit scheme to which it is attached. Even if the condition has such and essential nexus, the nature of the condition must be roughly proportional to the impact of the use on the validly regulated problem that the land-use scheme addresses.
 
Exactions: Conditional burdens: Governmental regulation requiring landowner to obtain permit for use. Typical example is a building permit. Problems occur when the government imposes as a condition to the obtaining of a permit that could not be independently posed without compensating the landowner. Two pronged cumulative test for exactions:
·         Essential Nexus This requirement must be substantially related to advance the state’s reason for limiting development in the first place. (Nollan)
·         Rough proportionality: Government must prove that the nature and scope of the condition are roughly proportionate to the impact of the proposed development on matters that the underlying regulation addresses. (Dolan)
If an option presented remains viable, it is not a taking. (Koontz)
 
Adverse Possession
 
Adverse possession is a combination of statutory and common law.  The statutory foundation for adverse possession is the statute of limitations on an action for ejectment of trespassers.  Statutes of limitations limit the amount of time an aggrieved party has to bring suit against a wrongdoer.  The point of a statute of limitations is to assure that lawsuits are brought within a reasonable amount of time. 
 
Adverse possession happens when a trespasser who meets the requirements for adverse possession, over the required period of time (usually the statutory limit for an action in ejectment) may not only bar a suit by the owner, but actually may take title to the property himself. 
 
The Elements of Adverse Possession
 
Rationales for Adverse Possession
Sleeping theory: True owner doesn’t care enough to protect their interest, so they deserve to lose title.
Earning theory: An adverse possessor who takes possession and stays there for the limitations period has expended time, energy, and money to make the land productive and should be rewarded for efforts, at least when true owner has not bothered to recover possession.
Stability theory: Adverse possession operates to resolve disputed clams of title and possession after there has been a long wrongful occupation with no action to recover possession. Adverse possession promotes efficient resolution of those disputes
 
1. Actual Possession – The two concepts relevant to determining whether the claimant has established actual possession are his present ability to control the land and his intent to exclude others from controlling the land.  When the claimant occupies the land without color of title, he must show physical possession of the entire area claimed, in order to meet this element.  Closing off a particular section of the land does not meet actual possession.  Instead, there needs to be continual acts of occupying, clearing, cultivating, pasturing, erecting fences, or other improvements, and paying taxes on the land.  Performing all or any combination of these acts of occupancy serves as evidence of actual possession, but is not conclusive because each case is decided on its own peculiar facts. 
                When the claimant occupies land under color of title, then the requirements of actual possession of the entire area claimed are relaxed.  According to statute, one who occupies land under color of title is required only to physically possess a part of the land claimed, out of all of the land, if during this period, he exercises the usual acts of ownership over all of the land.  Color of title is not an element of adverse possession, but it serves to extend actual possession of some portion of the land claimed to constructive possession of the whole land described in the instrument (deed) providing the basis for color of title.  So under color of title, physically occupying a portion of the land, allows for the person who claims color of title to still have actual possession of all of the land, even if they did not physically possess all of it at the time.
                Color of title is a written instrument, such as a deed, that appears to establish title to land, but does not in fact do so.  It does not or cannot convey legal title to land.  Color of title is not a valid deed because it does not convey title to land.  If you never had a deed, then you cannot have color of title.  It is easier to claim land through adverse possession if you can show color of title, however, having color of title is not necessary to claim lands through adverse possession.  In order to have color of title, you need to have the following things:
It needs to be written out as a deed.  Color of title requires a document. 
It needs to purport to convey title of the land.  It acts as if you are giving the land to someone else, but you do not own the land.  It transfers title or ownership of a piece of property that appears to be valid, but due to some defect, it actually does not.
It needs to be bona fide or made in good faith.  The deed has to look real or as if it could be true.  You will not get color of title for the Brooklyn Bridge because it is known that it is not owned by any one person.  The deed has to be made in good form and for outward appearances appear to be real. 
The deed needs to include a description of the land.
The true owner of the land has to have appropriate notice of the deed and its contents.  The owner must be advised not only of the claimant’s actual possession, but also of the constructive extent and boundary of the land claimed.  The only way the owner can be apprised of such contents is by having the deed recorded, which would bestow color of title. 
2. Hostile – In order to establish actual possession, the claimant needs to show that the possession was hostile or under a claim of right.  Claim of right requires that claimant enter and remain on the land with a belief that his right to do so is superior to that of the alleged owner.  It does not matter how long you claimed the land for, if you were not actually on the land, then you cannot claim adverse possession.  In order to meet the hostile element under adverse possession, the true owner of the land does not have to have knowledge of the hostile claim of right, nor does the claimant have to tell the true owner that he intends to deprive him of his title.  The possession must be opposed and antagonistic whereas the claimant must occupy the land with the intent to possess it as his own and not under the subservience to a recognized, superior claim of another.  The claim of right or ownership must also be clear and unambiguous.  If you have permission to use the land, either for free or by paying rent, then it is not adverse possession.  The hostility element requires non-permissive use of the land. 
3. Open and Notorious – In order to meet this element, it is necessary to prove that the claimant’s occupancy was conspicuous, widely recognized, and commonly known.  One canno

l time limit to this estate, but there is a condition.  If that condition is triggered or breached, it would cause for the estate to end prematurely and automatically go to someone other than the grantor.  If the grantor started with Fee Simple Absolute, the grantor now has nothing because the way he originally set it up is that if the condition is breached, a third party would now have the estate in Fee Simple Absolute.  The second grantee/third party now has an “Executory Interest” (EI) in Fee Simple Absolute.
 
Life Estate Absolute (LSA) – there is a natural time limit to this estate, but there is no condition.  Such as when the grantor gives his estate to “Mary for life.”  This means that Mary would have a life estate and only have present possessory rights to the property for the remainder of her life.  Once she dies, the estate goes back to the grantor.  She has no future property rights and cannot sell the property or leave it to her heirs.  If the grantor started with Fee Simple Absolute, the grantor now has a Reversion in Fee Simple Absolute (FSA). 
 
Life Estate Determinable (LSD) – there is a natural time limit to this estate, but there is also a condition.  If that condition is triggered or breached, it causes the life estate to end prematurely and the estate would automatically go back to the grantor.  If the grantor started with Fee Simple Absolute, the grantor now has a Reversion in Fee Simple Absolute (FSA), if the life estate ends naturally (person dies) AND the grantor also has a Possibility of Reverter (POR) in Fee Simple Absolute (FSA), if the life estate ends prematurely (because the condition was breached). 
 
Life Estate Subject to a Condition Subsequent (LSCS) – there is a natural time limit to this estate, but there is also a condition.  If that condition is triggered or breached, it would cause for the life estate to end prematurely and go back to the grantor, but only if the grantor decided to do so by terminating the life estate.  Although the condition is breached, the grantor does not have to terminate the life estate, nor does he have to retain the estate again.  If the grantor started with a Fee Simple Absolute, the grantor now has a Reversion in Fee Simple Absolute (FSA) if the estate ends naturally (person dies) AND the grantor also has a Possibility of Termination (POT) in Fee Simple Absolute, if the life estate ends prematurely (because the condition was breached). 
 
Life Estate Subject to an Executory Limitation (LSEL) – there is a natural time limit to this estate, but there is also a condition.  If that condition is triggered or breached, it would cause for the life estate to end prematurely and automatically go to someone other than the grantor in fee simple absolute.  If the grantor started with a Fee Simple Absolute, the grantor now has a Reversion in Fee Simple Absolute if the life estate ends naturally (person dies).  However, if the life estate ends prematurely (because the condition was breached) then the grantor has nothing because a third party or the second grantee holds the Executory Interest (EI) in Fee Simple Absolute (FSA) over the estate.  The third party only gets the property if the condition was breached by the person who initially held the life estate.  The third party would automatically get the property in fee simple absolute, as soon as the holder of the life estate makes that breach.  If the person with the Life Estate Subject to an Executory Limitation dies, the grantor gets it all in FSA and the second grantee gets nothing.