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Property II
Villanova University School of Law
Sirico, Louis J.

TOPIC 1 & 2: ADVERSE POSSESSION
 
Definition: A claim of ownership to property brought by a person who is trespassing, but satisfies the elements of adverse possession under the statute.
 
I. Elements of Adverse Possession
These elements describe the adverse occupant who can bring action of ejectment.
            A. Claim of Right (this is what AP is)
                        1. There is no transfer of title, it breaks the chain of title and starts a new                            chain of title.
                        2. Claim of Right
                                    a. Usually in FSA without reversion to break the title
                                    b. If you adversely possess anything other than FSA, that is the                                           only title you can get.
            B. Hostile
                        1. Acting as true owner would act (Nome 2000 v. Fagerstrom)
                        2. Innocent Adverse Possessor: even if the possessor is there mistakenly,                            and legitimately though the property was their own it still satisfies the                           hostile element.
                                    a. Some states only allow mistaken adverse possessor to claim
                                    b. Some states allow both evil-land grabbers and innocents.
                        3. Proven by maintenance and repairs, normal things a landowner would                             do.
                                    a. Presumption of permission: the adverse possessor will lose                                               unless they prove possession was nonpermissive
                                    b. Presumption of hostility: the adverse possessor will win if there                                       is no evidence the possession was permissive.
            C. Actual
                        1. Physical presence on the property
            D. Notorious and Open
                        1. A reasonable landowner would know they were there by physical                                   evidence, not that the landowner actually saw possessor.
                        2. Notice
                                    a. Actual Notice: the landowner sees the adverse possessor.
                                    b. Constructive Notice: the landowner should have known by                                              reasonable means that there was a possessor on the land. (ex: if the                                      owner drove by he would’ve seen)
                                    c. Inspection/Inquiry Notice: there were clues you should’ve                                                inquired further onto the property.
                        3. The Underground Cave: The court said it did not meet the open and                               notorious element of adverse possession.
                                    a. if the neighbor suspected, he should have inquired.
            E. Continuous
                        1. Continuous as the true owner would use it for the period of limitation.
                                    a. Every summer if the true owner uses it as a summer home, etc.
                                    b. Use needs to relate to the appropriate use of a true owner.
                                    c. Temporary break or interruption that isn’t unreasonable doesn’t                                       destroy continuity.
                        2. Tacking: put two adverse possessions together as long as the users are                             in privity of estate
                                    a. Privity relations: grantor-grantee; landlord-tenant; testator-                                               devisee; decedent-heir; mortgagor-mortgagee.
            F. Exclusive
                        1. The adverse possessor is the only one using the property.
II. Applying Adverse Possession
            A. In PA, 21 years to bring action of ejectment against adverse possessor.
            B. Statute of Limitations runs as soon as all the elements are present and continue to be present.
                        1. Objective Test To Assess Adversity Requirements: as soon as the true                             owner is disposed by someone who takes possession inconsistent with his                             own.
            C. Color of Title
                        1. A written document professing to grant title to the property in question                          but is defective and does not give the title.
                                    a. Documents include deeds, will or patent
                        2. With the defective document, you can seek title under adverse                                        possession.
                                    a. Reduces statute of limitations
                                    b. Creates constructive possession where adverse possessor can                                           claim the whole parcel even if they only actually possess part.
                        3. This applies when someone believes they own the property but don’t                              because of the defective document.
            D. Disability Statute Exceptions
                        1. After the original owner’s disability ends, the statute of limitations is 10                         years.
                                    a. 10 years after disability ends
                                    b. OR 20 years after they are entitled to action
                        2. Applies when original owner has a disability that prevents them from                              bringing action of ejectment or quiet title.
                                    a. Age: if he owner happens to be under 21
                                    b. Incompetent Owner: mental impairment
                                    c. If the owner has two disabilities, you use the last disability to                                          expire and then add 10 years.
                                    d. The disability must be present at the time the adverse                                                   possessor enters the land.
                        3. Disability can only make the term of possession shorter, not longer.
                        4. Harder examples
                                    a. O and P are tenants in common. O is legally incompetent.
                                                i. treat O and P as separate interests, and apply the statute to                                               O and O’s share.
                                                ii. Treat them as one interest, and say since P was                                                                 competent P should sue on O’s behalf.
            E. Agreed Boundaries Doctrine
                        1. Uncertainty about where the true boundary lies.
                        2. Agree to a new boundary line.
                                    a. Create a deed
                                    b. Orally agree on the boundary (not always best idea/statute of                                          frauds)
     

ception: profits are assumed to be in gross.
            D. Creation of Easements
                        1. Prescription
                        2. Express Easements (ie: deeds)
                        3. Implication
                        4. Necessity
                        5. Conveyance
            E. Running of the burden/benefit
                        1. Burden
                                    a. ISSUE: when the servient estate is conveyed, does the new                                             owner automatically bear the easement’s burden?
                                    b. YES IF: (1) intent of creating parties to run; (2) notice of                                                 easement to new buyer/owner
                                    c. Applies to appurtenant and in gross easements
                        2. Benefit
                                    a. ISSUE: when a dominant estate is conveyed, does the new                                              owner automatically have the easement’s benefit?
                                    b. IF APPURTENANT: then the benefit runs automatically based                                      on the creating parties intent
                                    c. IF IN GROSS: when the cross-easements benefit the creating                                          parties personally and there is no intention of benefit running, it                                          will run only if the easement is assignable and was assigned to                                      the new owner.
                        3. Martin v. Music: Easement on an Easement: burdened party enjoying a                           benefit
                                    a. Martin ran a sewer line under Music’s property, as an easement                                        making Martin the dominant and Music the servient estate.
                                    b. Music hooked into the sewer line that intruded on his property,                                       making Music a dominant party and Martin a burdened party. ( E                                        on E)
                                    c. Music sold pieces of his property to other owners who hooked                                         into the sewer as well.
                                    d. Music and new owners use the sewer and win b/c the running of                                                 benefit of the easement on the easement.
II. Prescriptive Easements
            A. Adversely possessing an easement is called prescription
            B. Must prove CHANC, but not exclusive element of adverse possession.
            C. Same rules of tacking apply
            D. Similar to adverse possession that gives a FSA, but only gives easement.
            E. Notice is needed for the burden to run
III. Subdivision of Estate