Lessson 2 - Trespass, AP Flashcards
The right to exclude is ___ to property rights
essensial
What is civil trespass?
An unprivileged, intentional encroachment upon property owned by another
True or False: Davy decided to go on a hike. he spots a bluebird and follows it onto Jeffery’s land. Davy has committed civil trespass.
True. The intent for civil trespass merely refers to the act itself, not an intent to trespass spcicivlally. Here, Davy’s decision to follow the bird is sufficient.
When is trespass privileged?
When the landowner gives assent for the other person to enter in the case of nessessity
What are the Elements for the Necessity Defence to trespass?
- A clear and imminent danger
- A reasonable expectation that the action will be effective to abate the danger
- There is no reasonable legal alternative that can abate the danger
- The legislature has not acted to preclude the necessity defense
The 5th Amendment guarantees that
No taking shall be done without just compensation
What is the exception not the protections offered by the 5th amendment?
The denial of one transitional property right does not amount to a taking
Josie lives in a historically significant house and wishes it tore bulldozed so that a school may be built there, and puts it into her will. Will her will be followed?
No. The right to destroy can be overruled by local legislation
Trees growing on property are ___ property
Real property. they are physically attathced to the land
Lumber milled from trees is ___ property
Personal property, they are distinguishable/severed from the land
Timber is built into a house on land. That house is ___ property
Real property
What is a fixture?
Fixtures are personal property that has been permanently attached to real property, but which could be removed.
What are the 3 elements of a fixture?
- Annexation – attachment to the real property
- Intent to annex
- Adaptation – personal property must be adapted or applied to some larger function or component of the real property (light fixtures, for example)
Whaat is Adverse Possession?
Adverse possession allows a person – who is not the legal owner of the property and who may have entered as a trespasser – to become the legal owner of the property if that person uses the property for enough years to satisfy the state’s statute of limitations period.
What is the usual time range for the statute of limitations with regard to AP?
5-30 years
Define “ejectment”
A legal action to remove a trespasser from proeprty
The ___ has the burden of proof in claims of AP
The AP
Julie successfully claims AP after residing on Bob’s land for 5 years. When does her title begin?
5 years ago, form the moment she began her possession
What are the 5 elements of AP?
Actual
Exclusive
Open & Notorious
Adverse/Hostile
Continuous and uninterrupted
Define Exclusive AP
The adverse possessor’s use cannot be shared with the true owner or be shared with the public in general.
If 2 different AP seek to AP the same land, who can oust the other?
The first AP
What is the Notorious test?
If the adverse possessor’s acts would be notice to an ordinary person, then the owner is regarded as knowing what the adverse possessor did.
Define the meaning of “Hostile” in the context of AP
use that is without the owner’s permission and against the owner’s interests.
True or false, a peace of leased land is ripe for an AP claim
Falce. The leaasee has the oner’s permission, so it cannot be hostile. UNLESS it becomes a hostile tenancy and no new lease is agreed to
Under what conditions can a TO interrupt the continuity of AP?
The true owner can interrupt this element by (1) bringing an ejectment action OR (2) by re-entering the property.
True or false, if an AP is ejected and then reenters the property, they have to start the Stature of Limitations term form the beginning
True
What are the 3 standards for hostility in AP? Which one is the most prevalent?
- Objective (majority). AP must merely possess the land. Their internal state of mind is irrelevant.
- Good faith standard - AP must think “I thought I owned it”
- Aggressive-tresspass standard - AP must know that the land isn’t theirs and intend to make it their own
What is Color-Of-Title? What effect does it have on an AP Claim?
title refers to a claim for adverse possession that is founded on a written instrument (a deed, a will) or a judgment that is for some reason defective.
Color of title can shorten the statute of limitations period, and grant all the land that the flawed document describes, as opposed to the land that the AP had in their physical possession (a 80 acre farm instead of a 1 acre camp)
Importent: color of title only applies if the AP has established all of the other elements on that piece of land. Ex. If notorious for only 20 acres of a larger property, then they will only get those 20 acres
What is Tacking?
using the periods that prior AP’s occupied the land (before you acquired it) to show that you met the SOL time requirement.
Under what condition will Tacking be allowed?
If the party seeking to tack had privity with the prior AP
What is Privity of Estate?
Exists between successive adverse possessors when A, who possesses for less than the SOL period, voluntarily transfers the property to B, who then possesses for a period that (together with A’s period), exceeds the SOL period.
What is the exception to privity of estate?
If the first AP abandons the possession, and then another AP takes up possession. the second AP must start the SOL from the beginning
What is a disability?
A condition that will suspend/extend an SOL if a landowner is part of an enumerated class of people
What enumerated classes of people will constitute a disability?
Minors, Overseas servicemen, the incarcerated, and the mentally incompetant
True or False, a disability that exists one month after an AP has taken up possession will suspend the SOL
False. A disability is valid only if it was present from BEFORE the AP
When is a diability removed from a landowner? Whist will its effect be?
The SOL will begin to run. Death will end a disability
