Select Page

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

Term usage:
·         Intestate – Where a person dies without will, and property is transferred to legal heirs through descent
o        If no heirs, property escheats to the state/gov’t
·         Testate – Where a person dies with will, decedent devises property to devisees
·         Grantor conveys/grants/sells property to grantee
o        Grant or conveyance during lifetime is inter vivos transfer
·         Covenantor is promisor and has burdened estate
·         Covenantee is promisee and has benefited estate
·         Debtor is the mortgagor (homeowner) and the bank is the lender/mortgagee
Adverse Possession: (Ch. 1, P. 44) (§78 – §146, Pp. 24 – 41)
·         General
o        Allows a person who does not own a particular piece of land to take over title if they meet the criteria
o        Essentially trespassing for statutory period that eventually transfers title to trespasser
o        Founded upon the theory that using the land is more important than not, also importance of assertion of rights
·         Elements
o        (1) Actual – triggers the cause of action, which starts possession period
§         Ability to control land, exclude others from land
§         Gain title to area of which claimant has physical possession (not mental possession)
·         Fence is very helpful to establish boundaries
§         Continual acts of occupying, clearing, etc.
§         Colour of title
·         Colour of title is a written instrument (or judgement) that the holder doesn’t know is invalid
·         If you have a title claim, whether valid or not, you have relaxed rules on actual possession
·         Deed could outline property
·         Don’t have to possess or act on entire land
·         Elements to establish legitimate Colour of Title
o        (a) Must have deed
o        (b) Must establish boundaries
o        (c) Actual owner must have notice (deed recorded)
·         If adverse possessor has actual entry on part of the land, he may be deemed in constructive possession of the rest of the land
·         Land actually claimed:
o        With COT – all the land that is associated with the land which the AP actually controls
o        Without COT – ONLY the land which the AP is in actual control of
o        (2) Hostile (specifically claimed land) also called “claim of right”
§         Possessor must be opposed to (and antagonistic to) the claims of all others (must think it is his)
§         True owner need not have knowledge of intent to be hostile
§         Three schools of thought on intent of adverse possessor (know and apply)
·         AP must know (it is not your land)
·         AP must not know (it is not your land)
·         Don’t care (what AP knows) – majority opinion
o        (3) Open and notorious (make known claim)
§         Occupancy was conspicuous, widely recognized, commonly known
§         Use was type the usual owner would make of the land (fencing, cultivating, building)
§         Owner can have actual or constructive knowledge
§         Give owner knowledge of adverse claim (must know of hostile intent) and chance to make counter claim
o        (4) Exclusive
§         Limit and exclude other possessors
·         two can work together, such as husband and wife)
·         would adversly possess property as TIC
§         Occupy land for own use and not another or the gen

P’s land is subject to them
Government land is exempt from AP
Waste Doctrine: (Ch. 2, Pp. 125 – 127) (§331 – §338, Pp. 92-93)
Defined
o        “Waste” is conduct by the life tenant that permantly impairs the value of the land or interest of the person having the subsequent imterest
o        Concerned with relationship between present possessor and future interest holder
Types
o        Affirmative (Voluntary) Waste:
§         affirmative act which injures the rights of the future interest owner
§         this typically applies to resources
o        Permissive (Involuntary) Waste:
§         Life tenant allows the land to fall into disrepair
§         Life tenant has no duty to keep insurance on the land
o        Ameliorating Waste:
§         Where the use of the land is changed by the life tenant
§         BUT, where the value of land is increased by the action
§         This is actionable if:
·         The grantor intended to pass the land with a specific use in mind
·         The land can reasonably be used for the purpose for which it was intended by grantor
Common Law
o        Any substantial alteration was waste, regardless of whether it enhanced property value (Damages = $$, injunction)
o        Remainderperson entitled to get land in the condition it was when original grantor split ownership
Modern Law