CHAPTER 2: Owning Real Property Flashcards
What is real property?
Land and things “part” to the land: building, fences, trees, T-Rex bones
What are “fixtures?”
Items of person property that are physically attached to the real property: chandeliers and smoke alarms
Adverse Possession
What are the 4 justification for adverse possession?
(1) Prevent frivolous claims
(2) Correct title defects
(3) Encourage development
(4) Protect personhood
Adverse Possession
How does it (1) prevent frivolous claims?
There is a special SOL and provides the occupant with security of title
Adverse Possession
How does it correct title defects?
Decriptions in deeds may contain errors. The person who actually occupies the land is protected by lengthy possession.
Adverse Possession
How does it encourage development?
The title may be reallocated from an idle owner to an industrious squatter.
Adverse Possession
How does it (4) protect personhood?
“A thing which you have enjoyed and used as your own . . . takes root in your being.” - Holmes
Adverse Possession
What are the elements to prove Adverse Possession?
(1) Actual possession
(2) Exclusive possession
(3) Open and notorious possession
(4) Adverse and hostile possession
(5) Continuous possession
(6) For the statutory period
Adverse Possession
Define (1) actual possession
Claimant must physically use the land in the same manner that a reasonable owner would given the land’s character, nature, and location
Adverse Possession
Define (2) exclusive possession
The claimant’s possession cannot be shared with anyone with whom the claimant does not have privity
Adverse Possession
Define (3) open and notorious possession
Must be visible so that if the owner made a reasonable inspection he would be aware of the adverse claim
Adverse Possession
Define (4) adverse and hostile possession
Possession authorized by owner does not meet this element. However, jx split:
1. Most states consider state of mind to be irrelevant
2. Some states require “good faith” belief that adverse possessor owns the land
3. Few states require “bad faith” act to take the land from the owner
Adverse Possession
Define (5) continuous possession
Claimant’s possession must be as continuous as a reasonable owner’s would be given the character, location, and nature of the land
Adverse Possession
Define (6) for the statutory period
Determined by state statute. Ranges from 5-40 years.
Adverse Possession
Open and notorious reasoning from Gurwit v. Kannatzer
Possessor posted “no trespassing” signs showing hostile possession, cut firewood and picked up trash along the road, held the land for himself (not another)
Adverse Possession
Color of Title possession v. no Color of Title
