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

Prof. Watson
Summer 2010
Adverse Possession
True owner neglects considerable period of time to assert right, benefiting a.p. By reason of demerit of to, not merit of a.p.
-statute of limitations (5-21yrs 14th 15 centuries-generation break-life
Expectancy of 30–well within memories)
-Harder you make adverse possession ownership of l& easier to stay in
H&s of owner & vice versa
method of transferring interest in l& without the consent of the prior owner – in spite of the consent of the prior owner!
–       Doctrine came about for efficient l& use.
o   Reward people to put the l& to good use.
o   Punish l&owners who don’t use l& (the statute runs out for them).
o   Policy: it’s a good idea to end stale l& disputes. 
–       Old common law statutory period was 21 years – now it’s more like 5,10-21
Possession-USE & CONTROL If we set aside hostility, possession will effect all the others
-Physical improvements coupled with use, gives possession-doesn’t have to be what average owner would do, in close case, very helpful to know answer in questions of arguable possession-could be something no one else has ever done, if you have control & doing something & meet the elements-you have control (Jarvis v. Gillespie, loading dock, physical improvement, control via signs)—physical improvements coupled w/ use gives possession
-triggering event, statute of limitations begins to run-requires physical occupation
                        -Clear case-placing fence on parcel, substantial structure, & visible marks of use over it.
                        -test: were acts of possession such as would be normal for an owner to make of the l&
-b/c l& can be used for other purposes doesn’t mean possessor failed to act as average owner (javis v. Gillespie)
            Constructive Possession
-exception to actual possession
-possessor enters under color of title describes larger l& than actually possesses, actual possession of only part of the tact may be constructive adverse possession of the whole
-open & notorious
– visible & apparent-giving true owner reasonable notice for opportunity for claim, cave is not O&N (Marengo cave v. ross)
                                                -presumptive knowledge-owner need not actually see the evidence, but is
presumed to know what reasonable inspection would disclose.
Ex: manillo v. gorkis-owner required survey to determine encroachment, too small
-weight is placed on possessor’s reputation as owner or public records evidence of ownership (Jarvis v. Gillespie)
-excluding entire world & claiming as his own. Visitors with ap permission are guest, to
may also be guest—cannot be shared with actual owner.
-even if true owner uses the l& the possessor is using, they use it in the manner which ap wants, they are coming in with their permission & doesn’t stop exclusive
-degree of occupancy average owner would make use of it.—continue w/o significant interruptions
–If summer/seasonal home, it’s for the usual period of use.—depends of nature of l&!!
–If ever ab&on by ap then come back, statute of limitations start again.
–If forced out & then return, can tack the periods together.
-even if true owner uses the l& the possessor is using, they use it in the manner which ap wants, they are coming in with their permission & doesn’t stop continuity
-adding together periods of possession that are continuous but by different parties provided that privity exists between them
-subsequent possessor, w/ permission of prior– may be oral, deed, possessor dies & heir takes over-2nd party comes in & throws other out, tacking not good.
-must be mutual consent—ab&onment & found by another doesn’t count
-hostile & under claim of right
                        – treat l& as yours, act as true owner, enter w/o permission, & use l&
-Maine doctrine (minority view) – Encourages perjury
            -Mistaken boundary, intent to stay behind mistake when identified, adverse possession
-Mistaken boundary, believes it is the true line, but when confronted has not intention to claim title, he does not get title
-I didn’t think I owned it but I intend to take it!—mistake + intent to st& behind mistake
                        -Pearce court or Connecticut doctrine (majority view) OBJECTIVE ST&ARD
-intent (state of mind), motives are unimportant (scienter not looked at)-must only treat as their l&—what he thinks or intends is irrelevant
                        -Iowa doctrine GOOD FAITH ST&ARD
                                    -must have color of title or basis for a claim & good faith claim to the l&
                                    -If they know the title is bad, he does not have a good faith claim
                             -color of title is a form of claim of right–claim of right must be made in good faith
                                    -Good faith claim of right means-you can’t know that you don’t have title
                                    -what was their motive when they stepped foot on the l&
                                    -A good faith claim cannot be established when knowledge of lack of
ownership is accompanied by no basis for entering the l&.
Innocent improver doctrine-Requires mistake
-Innocent improver-possessor, innocently with mistake & good faith, improves others l&, & true owner would be hurt less by the removable, improver would have to reimburses true owner for property. 
-improver through reasonable mistake entitled to recover value of improvements from l&owner OR
-purchase l& improved upon from owner less the improvements made
Exception: where possessor does not have good faith-where he knows he has no interest in it or claim to it, he can’t gain l& b
– at common law, the improvements became the property of the true owner. But the modern tendency is to force a conveyance of l&, or to give the owner the option to buy the improvement at a fair market value. 
Intentional encroachments are treated differently: typically are ordered removed, no matter how expensive removal might be. Person should have asked to buy the l&. 
Disabilities: the statue of limitation is extended.
–       minority
–       unsound mind
–       imprisoned.
-Ohio rule, disability must be present when the cause of action accrues. 
-other states, tolling exists which pauses the statute of limitations, & then it runs after minority is over, or when disability leaves.
Future interests & Possessory Estates
Category of
Possessory estate         possessory estates       grantor                                     third party
FSA                 FSA(& her heirs)                     none                                        none
                        Fee simple determinable         possibility of reverter              none
FSD                 Fee simple subject to               right of entry/                          none
                        Condition subsequent             power of termination
                        Fee Simple Subject to
                        Executory limitation               None                                       Executory Interest
Finite estate     Life Estate                              Reversion                                Remainder
                        Fee Tail                                   Reversion                                Remainder
                        Term of Years                         Reversion                                Remainder
Fee Simple Absolute
White v. Brown- Mrs. Lide died & had holographic will stating give Δ her home to live in & not be sold, also stated house not to be sold. Π state this was life estate only & should pass down to her heirs after Δ death.
-intended give fee estate, yet limited what could do with it, falling in line with limitations life estate bring.
-law automatically assumes fee simple, & teamentaries restraint on alienation of home doesn’t overcome laws strong presumption. passed fee simple, & her restraint must be declared void due to it inconsistent with incidents & nature of the estate devised & contrary to public policy.
-Seisin-right to possess l&
-Delivery of seisin
-kneel down, h&s open, lord would h& him something to show him he has given him something.
-Deeds now represent delivery of seisin
-If no kids, they look to the next area-lateral–LOOK UP TILL YOU CAN LOOK DOWN
-If parents dea

     -Contingent—UPON COMPLETION
O à To A for ten years, then to whomever is then President of the US
          A has a life estate b/c it says for life
          President: Contingent remainder in FSA b/c he is not ascertainable
B has a reversion in FSA
-No stated condition subsequent
            -condition precedent condition that applies to interest before becomes possessory
O –> to a for life, then to b for life, then to e for life.
A has a life estate b/c it says life.
B has a vested remainder, it’s a vested b/c he is born, ascertainable, & there are not precedents…he is ready to take the possession from a, it is a remainder b/c it goes to a 3rd party, & its after a finite estate, in life estate, b/c it says for life.
E has a vested remainder in life estate
O has reversion in fsa
0–>to a & the heirs of her body, then to b & the heirs of her body, then to e & her heirs, but if she begins to develop the property, then o has right ot reenter & reclaim the roprty
                   A has fee tail
B has fee tail vested remainder
E has vested remainder in fee simple subject to condition subsequent
-Stated right of reentry, condition is subsequent to giving
O has reversion with power of reentry in fsa
          0–>A & her heirs as long as a uses the l& for agricultural purpose, then to b & his heirs
A: has fss to executory limitation–b/c a places a limitation on it, & since someone else has the future interest other than the grantor
B: has shifting executory interest in FSA
          O à To A for life, then to B & her heirs if B survives A
                   A: has a life estate b/c it says for life
                   B: has a contigent remainder in FSA b/c he has to survive A
                   O: has reversion in fee simple b/c B might die before A dies
          -Once you have last future interest is contingent in FSA there has to be a reversion
                   To a for life & upon a’s death & if b marries a’s widow, then to be & his heirs
There is a gap, no matter how you play it, then the grantor must take possession. Therefore, it’s reversion for grantor, & is springing executory interest in fss to ex limitation
-To have to require someone to survive another would be a STRAIN to make that a condition
                   -Preference for vested over contigent analysis in the courts
            Alternative Contingent Remainder
                   -conveyance sets forth 2 contingent remainders & the second one is contingent                             on first failing to vest
O à To A for life, then to B & her heirs if B graduates from law school, but if B fails to graduate from law school, then to c & her heirs.
          A: has a life estate b/c it says for life
          B: has a contingent remainder in fee simple, its contingent b/c there is a condition
precedent that must occur: her graduating from law school
                   C: has a alternative contingent remainder in FSA b/c it will become possessory only             if another contingent remainder does not
          Oà To A for life, then to B for life if B graduates from law school, but if B fails to graduate from    law school, then to C & her heirs
                   A: has a life estate b/c it says for life.
                   B: has a contingent remainder in a life estate b/c there is a condition precedent, to
graduate law school, & it says for life