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

Property Watson Fall 2015

Chapter 1 – Adverse Possession

All 5 elements are required for the AP to become the owner of the property and create a new title for himself
The burden of proof is on the AP to satisfy each element
Trespasser who meet requirements of adverse possession over the required period of time may not only bar a suit by the owner, but actually may take title of the property himself

Actual Possession (2 concepts must be proved for this element)

Present ability to control the land and Intent to exclude others from such control; and
AP must show physical possession of the entire area claimed

Must be continual acts of occupying, clearing, cultivating, pasturing, erecting, fencing,
AP must act like true owner

Hostile Possession (State of Mind)

AP must give the true owner the opportunity to be on notice of the occupancy, regardless of whether the TO has actual notice
Can possession of a certain tract of land be hostile if the true owner permits it? No, because hostile equals only non-permissive.

State of mind (Differs by state)

Some states require the claimant must know the possession is wrongful
Some states require the claimant must NOT know the possession is wrongful
Some states only look at the actions that occurred.

Open & Notorious Possession (Two ways)

Actual – AP shows that the owner actually knew the AP was on the land
Constructive – AP shows that it was so obvious and clear that the true owner should of known because it was so well recognized

Exclusive Possession

The AP must act like an owner;
To exclude others; and
Occupy the land for his own use and not that for another

Continuous Possession (Differs by state)

The AP must show that he has satisfied all the above elements for a certain period of time, which depends on the state of the occurrence.
Continuous possession does not have to be most recent years, can be further back in the past, but harder to prove.


An adverse possession can be transferred, which is called tacking
Can be done by deed, intestate, or oral statement. Oral statement is usually not done, but still can be proof for adverse possession claim
Tacking specifically helps to prove the element of continuous possession because the years help by the previous claimant will be carried over

Color of title (Not an Element of Adverse Possession)


Where claimant occupies the land under color of title, the requirement of actual possession of the entire area is relaxed.
Where an AP has color of title, the AP is only required to physically possess part of the tract of land claimed in the name of the whole, if during the period of possession exercises the usual acts of ownership over the whole land.

Extends actual possession of some portion of land claimed to constructive possession of the whole tract described in the instrument that makes the claimant the apparent owner, but it might not actual convey legal title (A VOID DEED)

Cannot transfer a Color of title orally because it is a physical document

5 elements that are required

The instrument constitutes Bona Fide (Genuine);

The instrument was created for genuinely conveying the title of the land and not falsely made

Purports to convey title;

Portrays ownership to the AP

Describes the land;

The color of title has to have a description of the land and it’s contents

Notice of the instrument; and

Constructional – For Example, recording your deed at the recorders office
Actual – Showing the deed to the owner

The contents of the instrument

The contents must be read and understood by the owner of the AP used actual notice as described above. For example, just because an AP sends the Color of title to the current landowner by mail, does not mean he read the title unless he opened the document and read the contents.

Exceptions to Adverse Possession

Cannot be an AP, if actual owner lacks the “capacity” to protect his or her rights
However, a disability that arises after the AP claim has begins will not stop the running of the clock

Chapter 2 – Material Estates & Future Interests


Intestate – There is no will when person dies
Testate – There is a will when person dies
Heir – Living people do not have heirs, only “wou

turn to the grantor (or successor) if he/she affirmatively terminates and demands possession

Life estate subject to an executory limitation (Defeasible)

A life estate with a condition which, if triggered, causes possession to automatically go to someone other than the grantor who was named by the grantor

Life Estate Pu Autre Ve

A life estate that uses someone else’s life as the measure of it’s duration
For example, Joe devises “To Anna (WP) for the life of Bob (WL).”

Fee Simple (absolute)

Conveyed by “To Anna (WP)” | “To Anna (WP) and her heirs (WL)”
No time restrictions (goes on forever) and no condition. Courts are less picky today about the wording. Will accept “To Anna” as a fee simple absolute.

Fee Simple determinable (Defeasible)

[If the condition is breached ownership goes automatically back to the grantor] Phrases – “While” | “During” | “Until” | “so long as”
Possibility of reverter

Fee Simple subject to a condition subsequent (Defeasible)

If the condition is breached, the grantor may choose if he/she wants to terminate ownership and take back possession or not
Phrases – “Provided that” | “but if” | “on the condition that”
Power of termination

Fee Simple subject to an executory limitation (Defeasible)

[Automatic to someone else besides the grantor] Conveyance before contingency = FSEL
Contingency before conveyance = FSA

Future interest labels

Reversions – Refers to the grantor

What the grantor will get back if he grants less then what he owns or if there is a condition on the conveyance
Is transferable
Happens in defeasible fees, term for years, and life estates
Describes Grantors non possessory estate
Possibility of failing