Property
I. The Concept of Property
A. Right to Transfer
B. Right to Exclude
C. Right to Use
II. Themes
A. Policy
B. Tensions
III. Adverse Possession
A. Policies and Justifications:
1. Preventing Frivolous Claims
i. Acts as a special SoL for recovering possession of land
a. Bars lawsuits based on stale, unreliable evidence, thereby protecting the occupant from frivolous claims.
ii. Provides the occupant with security of title, thus encouraging the productive use of land.
2. Correcting Title Defects
i. Protecting the title of the person who actually occupies the land
a. Lengthy possession serves as proof of title.
ii. Ex. Property description in a deed might contain and error.
3. Encouraging Economic Development
i. Reallocates title from the idle owner to the industrious squatter..
4. Protecting Person hood
i. “A thing which you have enjoyed and used as your own for a long time… takes root in your being and cannot be torn away without your resenting the act.” – Oliver Wendell Holmes, Jr.
B. Elements:
1. Actual Possession:
i. The claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature.
ii. In most jurisdictions, activities such as gathering firewood, cutting small amounts of timber, grazing cattle, or removing minerals are considered sufficient actual possession of wild and undeveloped land.
2. Exclusive Possession: The claimant’s possession cannot be shared with the owner or with the public in general
i. Use of disputed property by 3rd parties may also prevent an adverse claimant from proving exclusive possessopm
3. Open and Notorious:
i. The claimant’s possession must be made visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim.
ii. Activities such as clearing brush, cultivating crops, building a fence, or posting signs are often used to satisfy this requirement.
iii. Notice Requirement: gives true owner notice the trespasser is using the land.
4. Adverse and Hostile:
i. Possession authorized by the owner does not meet this requirement. (all States agree)
ii. Majority Rule: adverse possessor’s state of mind is irrelevant
a. Some Jurisdictions require that the adverse possessor believe in good faith that he is the owner of the land.
b. Few jurisdictions (virtually 0) require bad faith: intention by the claimant to take title from the owner
5. Continuous for the Required Period:
i. Continuous: The claimant’s possession must be as continuous as a reasonable owner’s would be, given the character, location, and nature of the land.
a. Think about nature of vacation homes etc.
b. Sporadic uses of wild lands are usually deemed continuous.
ii. Statutory Period: Typically established by statute; 5-40 years with 10, 15, and 20 being the most common.
C. Claim of Title v. Color of Title
1. Color of Title: a deed, a judgment, or another written document that is invalid for some reason.
i. In many states AP standards are easier to meet
a. Required period is often shortened.
b. May be able to acquire more land because under color of title a occupant is deemed to have constructive possession; not just the part occupied.
2. Claim of Title: ???
i. You only get the part of the land you are possessing/occupying.
ii. Longer continuous period is applied.
D. Proving Adverse Possession/Mechanics
1. Normally arises in two procedural situations:
i. Quiet Title: lawsuit brought to establish title to the land; typically P sues all people who claim any right, title, or interest in the land and the court issues a judgment that resolves the controversy.
ii. Defense: Raises the doctrine as a defense to an owner’s lawsuit to recover possession.
2. Judicial action is not necessary for an adverse possessor to obtain title…
i. Once the statutory period is over the adverse possessor automatically acquires title to the land when the period ends, without any litigation.
a. Common for adverse possessor to bring quiet title after this in order to ensure that the public land records show that the adverse possessor has title.
3. Tacking: The adverse possession periods of two or more successive occupants may be added together to meet the statutory period.
i. Most states require privity
a. Privity of Estate: The relationship that exists between a grantor and a grantee with respect to land described in a deed or other instrument of conveyance.
b. Generally satisfied when one occupant transfers his rights in the property to a successor (ex. Deed or will)
c. Connects the possession of the successive occupants.
d. Has to be continuous chain of title transferred.
E. Other Issues:
1. Disability: For reason of imprisonment, minority, and lack of mental capacity, and possibly those away on military service or reside outside of the state; period for adverse possession will be extended.
i. Continuous time period is tolled while disabled.
ii. In many states, only a disability that exists at the beginning of the adverse possession period will extend the statutory period.
iii. Death ends all disability
iv. Disabilities cannot be tacked
v. Disability does not shorten the standard period for adverse possession.
2. ID of the parties
i. Ownership Type:
a. Adverse possession does not just apply to fee simple absolute holders. The successful adverse possessor receives only what the owner had.
b. ***adverse possession is not available at all against an owner who does not hold the present right to possession of land.
ii. Government Owned Land:
a. In most Jurisdictions, AP cannot be asserted against land owned by state or local governments.
b. Exception: statutes in some jurisdictions permit AP against land help by state or local governments if that land is used for a proprietary or nonpublic purpose.
i. Ex. city-owned forest land used only for timber production may be subject to AP but not a public park
F. ***Final Thoughts: think about tying into easements for essay question
IV. Concurrent Ownership: (supplement in print version)
A. Generally: Each co-owner or cotenant has the right to use and possess the entire property. Splitting up the sticks and everyone gets the same sticks for a present possessory interest.
1. Tenancy in Common:
i. Ex. To A and B;
ii. To A,B, and C; C assigns her rights to A. A has a 234 interest but A and B have the same right to use. When sold, the proceeds will be divided according to interest percentage.
iii. Each tenant has an undivided, fractional interest in the property
iv. Freely alienable, devisable, and descendible
v. Right to use and possess the whole parcel even if his fractional interest is smaller than the interests of the others.
vi. Revenue from property is split by percentage owned
vii. ***Absent express language to the contrary, the law presumed a Tenancy in Common. Default in every state
2. Joint Tenancy with Rights of Survivorship
i. O conveys to A and B as joint tenants with right of survivorship.
ii. Each tenant has an undivided right to use and possess the whole property.
iii. Each joint tenant has a right of survivorship
a. Must clearly state the right of survivorship
b. Can be more than just two tenants.
c. When A dies, A’s interest in the estate is removed and B automatically becomes the sole owner.
iv. Only alienable (but causes severance); not devisable or descendible because of right of survivorship.
a. Ex. A&B are joint tenants and A devises to C.
i. C gets nothing b/c A cannot devise.
b. ***Created only when Four Unities are present: if any of the unities is lacking, a TIC is created.
i. Time: Must acquire interests at the same time
ii. Title: Must acquire title by the same instrument
iii. Interest: Must have same shares in the estate (equal size and duration)
iv. Possession: Must have equal right to possess, use, and enjoy the whole property.
c. Used as a cheap alternative to a will…
d. Straw person: A wants to do a JT with B but already holds title, grant it to C and have C grant it back to A and B. Modern courts have allowed A to grant it to himself and B to do away with the need for a straw person…
v. Severance:
a. If one joint tenant alienates her interest, the joint tenancy is severed.
i. The grantee becomes a tenant in common with the other concurrent owners… However, the other cotenants remain in Joint Tenancy in respect to each other.
1. Ex. A, B, C are JT’s. A sells his interest to D. A’s interest is severed and D now has an undivided 1/3 interest as a TIC with B and C. B and C, between themselves remain JT’s with rights of survivorship. If D dies, his TIC interest will go to his devisees or heirs. If B dies, her interest in the JT is removed and C now has an undivided 2/3 interest and is a TIC with D’s devisees or heirs.
b. Sale of your interest severs
c. Lease may sever, depends on jurisdiction.
3. Tenancy by the Entirety
i. O conveys to A and B (as husband and wife) as tenants by the entirety
ii. Only for married couples
iii. Creditors of only one spouse cant touch the tenancy
a. You cannot create a tenancy by the entirety to defraud already existing creditors.
iv. Each tenant by the entirety has an undivided right to use and possess the whole property and a right of survivorship.
v. If TIC before marriage, after marriage still is a TIC
vi. Can only be ended by death, divorce, or agreement of both spouses.
B. Partition
1. A partition judgment ends the co-tenancy and distributes its assets
i. May arise out of dispute between cotenants that cannot be resolved, results in a partition suit.
2. Division of land/money from sale of land into the cotenants’ respective shares
3. Partition by sale
i. Not preferred b/c they interfere with property rights, however, it is the most commonly used.
ii. Sell the property and then divide the proceeds according to the proportion that each person owns
4. Partition in kind
i. Preferred method b/c it leaves cotenants holding the same estates as before and does not force sale on unwilling cotenants. However, not the most commonly used.
section, discrimination includes –
i. (A) a refusal to permit, at the expense of the handicapped person, reasonable modification of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may… condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;
ii. (B) a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…
3. 2 exceptions: (do not apply to (c) (advertising)
i. If the owner is living in a unit of the property being rented
a. Duplex, triplex, etc. + owner living in the complex
ii. Any sing-family house sold or rented by an owner if he owns less than 3 houses and does not use a real estate broker or agent in the sale or rental.
iii. (c) Applies to all property
4. Prima Facie Case of Discrimination
i. P is a member of a protected class & D knew or suspected he was
a. Have to show intent of D
b. Race, Color, Religion, Disability, Sex, Familial..
ii. That he applied for and was qualified to rent the property
iii. That D rejected his application and
iv. That the property remained available thereafter.
5. Proving Discriminatory Intent
i. (1) Plaintiff establishes a prima facie case of discrimination (disparate impact vs. disparate treatment);
ii. (2) The burden shifts to the defendant to prove a legitimate, nondiscriminatory reason for his conduct;
iii. (3) If the defendant meets that burden, then the plaintiff must show that the reason is mere pretext.
C. Nonfreehold Estates
1. 4 Nonfreehold Estates
i. Term of Years Tenancy:
a. Fixed duration agreed upon in advance, year.
i. Must state a specific term (cannot say until T dies)
b. Lease expires at end of term. The tenant’s possessory right automatically expires, and the landlord may retake possession of the premises.
ii. Periodic Tenancy:
a. Automatically renewed for successive periods unless the landlord or tenant terminates the tenancy by giving adequate notice.
i. You have to be on top of sending notice before getting locked in to another year.
ii. Will renew for whatever period the original lease is. Cant go from a one year lease to month to month and be periodic. (That would be Term of years with a holdover).
1. **Residential leases are likely a term of years tenancy with a provision that holdovers become tenants at will.
iii. Tenancy at Will
a. No fixed ending point, as long as both parties desire.
b. either can terminate for any reason; don’t have to have good cause to terminate
c. Most states require advance notice to end this tenancy, usually equal to the period of time between rent payments
d. The tenancy terminates automatically if either party dies, abandonment, or sale of property
iv. Tenancy at Sufferance
a. Created when a person who rightfully took possession of land continues in possession after that right ends
b. If the tenancy ends at midnight on 12/31/10, but T wrongfully continues in possession, T becomes the holdover tenant.
c. Holding Over: no adverse possession because you have permission. Turns lease into periodic month to month (Commercial Holdover Provision Slide).
i. Not a trespasser unless you refuse to leave after LL demands
1. Can treat as a trespasser
2. Or can star you on a new lease
ii. Mense Profits: profits derived from the land while the possession is improperly withheld from the rightful owner.
2. Statute of frauds governs leases that have a term of more than a year
i. Must contain: key lease terms (parties, duration, property, and rent), and be signed by party to be charged
3. Lease v. License:
i. License: personal privilege (kiosks in the mall).
ii. Lease: estate
