Perscriptive Easements/Other informal ways to transfer title to real property

Question 1

Encroachment

Answer 1

Construction of a structure that encroaches on neighboring property

• Landowner may want the structure removed because it (1) devalues the property or (2) invades the landowner’s possessory interest
• Builder may want the structure to stay, perhaps upon payment of compensation to the landowner or a forced purchase of the land on which the building encroaches

Question 2

Encroachment Treatment Split

Answer 2

• Traditionally, many courts held property owner has an absolute right to an injunction ordering an encroaching structure removed, no matter (1) what the cost or (2) the relative value of the properties or (3) the extent of the encroachment (Bishop: P had the absolute right to have the part of the house erected by D, partially on the adjoining, unimproved lot of P, removed)
• MAJORITY: Now: the owner has some respons to find out what’s happening to your land; just like AP)

Question 3

Relative hardship doctrine 4 factors All req

Answer 3

1. Innocent (the result of a mistake)
2. The harm minimal;
3. The interference in the true owner’s property interests small; and
4. The costs of removal substantial.

Question 4

Relative Hardship if 4 factors..

Answer 4

Then courts will often refuse to grant an injunction ordering removal of the structure. Instead,

1. Order the encroaching party to pay damages to the landowner to compensate for the decrease in the market value of the land (effectively purchasing an easement over the landowner’s property) OR
2. Order a forced sale of the property from the landowner to the owner of the encroaching structure for the fair market value of the land taken and, possibly, a premium to compensate for the involuntary nature of the transfer in ownership (damages for any injury suffered because of the loss of the land)

Question 5

Relative Hardship Exceptions

Answer 5

• Removal is still ordered when:

1. Cost of removal is small
2. The builder acted knowingly
3. The interference with the owner’s ability to use its property is substantial

Question 6

Relative Hardship Balancing Test (4 Factors)

Answer 6

• Whether the owner acted in good faith or intentionally built on the adjacent land
• Whether the hardship incurred in removing the structure is disproportionate to the harm caused by the encroachment (mere inconvenience not sufficient / relative hardship must be disproportionate)
• Courts will refuse to order the removal of a mistaken encroachment when the equities tilt strongly in favor of the encroacher
• If bad faith: do not consider arguments about relative hardship

Question 7

Construction of an entire structure on a neighbor’s property (Old vs. 3 Modern)

Answer 7

• Traditionally, courts hold that the structure belongs to the owner of the land on which it sits (Banner)
• NOW SPLIT:

1. Some courts hold that an innocent trespasser who improves property in the good faith belief that it was her property has a right to compensation for the value of the improvements made when those improvements increase the value of the property.(Somerville v. Jacobs)
2. Other cts hold that trespassers cannot have the adv of any benefits they made on the property (Such improvements belong to the landowner w/o compensation to trespassers)
   
   • Against the first option: The solution offered benefits to only P, the only party who had a duty to determine which lot was the proper one and who made a mistake. To allow them compensation or to purchase at fair market value has the effect of private condemnation by private parties for private use (which only the government can do)
3. Some states (Betterment statutes): allow owners to choose between paying the builder the value of improvements built on their land or selling the land on which the improvement sits to the builder
   
   • Compensation is only allowed when the builder had (1) color of title and (2) believed in good faith that the land was hers

Question 8

Boundary Settlement Oral Agreement:

Answer 8

• cts may uphold oral agreements btw neighbors that set the boundary btw properties if:

1. Both parties are uncertain of the true boundary or genuine dispute exists over location of boundary;
2. The parties can prove the existence of an agreement setting the boundary; and
3. The parties take (and/or relinquish) possession to the agreed line

Question 9

Boundary Settlement Acquiescence

Answer 9

• : Even without oral agreement, courts may recognize a longstanding acquiescence by both neighbors in a common boundary When:

1. Adjoining owners
2. Who occupy their respective tracts up to a clear and certain line (e.g., a fence)
3. Which they mutually recognize and accept as the diving line between their properties;
4. For a long period of time - cannot thereafter claim that boundary thus recognized is not the true boundary

Question 10

Boundary Settlement: Estoppel

Answer 10

• When one owner erroneously represents to the other that the boundary between them is located along a certain line and the second owner, in reliance on those representations, builds improvements that encroach on the true boundary or takes other detrimental actions - The party who made the representations is estopped from denying them, and the boundary is in effect shifted accordingly
• Some states may find estoppel even when no explicit representation is made – it may be inferred from an owner’s silence in the face of knowledge that his neighbor is building an encroaching structure

Question 11

Boundary Settlement: Laches

Answer 11

• Equit. doc. that bars asserting a property interest bc of unexcused or unexplained delay in assertion
• Mere lapse of time is insufficient - The delay must have caused some prejudice to the party against whom the property interest is being asserted that would make the assertion of the right inequitable
  • If the owner knew about an encroachment but did nothing to stop, the encroacher might have invested in reliance and court may deny injunctive relief

Question 12

Boundary Settlement: Dedication

Answer 12

A transfer of real property to a government entity

Question 13

Boundary settlement: Riparian Owners

Answer 13

• : Special rules govern changes in borders of riparian property (located on body of water)

1. Accretion: Slow changes in buildup of land caused by slow deposit of silt or sand on the border of the land - Belongs to the owner of the land whose borders are thus enlarged
2. Erosion: Gradual losses of land - Sink the owner’s land rights
3. Avulsion: Very sudden changes caused by events such as earthquakes and floods

• Generally held not to change the borders of property

Question 14

AP of Personal Property Conversion Rule

Answer 14

• The running of the SoL begins when the property is wrongfully taken (converted) and the owner dispossessed of the property

Question 15

Ap of Personal Property Discovery Rule

Answer 15

• The running of the SoL begins when possessor of property is identified, or reasonably should have been identified by the true owner – Requires due diligence on behalf of the true owner
• O’Keefe: D’s purchase of three paintings from a thief did not qualify as adverse possession because one could not obtain good title from a thief. SOL began running when owner discovered, or should have discovered where the stolen property was located
• EXCEPT: UCC § 2-403(2): Entrusting possession of goods to a merchant who deals in that kind of goods gives the merchant the power to transfer all the rights of the entruster to a buyer in the ordinary course of business, thereby vesting good title in the buyer as against the original owner

Question 16

AP of personal property Demand Rule

Answer 16

• The running of the SoL begins when the true owner makes a demand for a return of the property and that demand is refused - Negates due diligence on behalf of the true owner
• Guggenheim Foundation: D’s claim that P’s failure to attempt to recover the artwork meant that P’s rights were barred by the SOL. P argued that decision not to publicize theft was tactical for fear it would drive the property further underground
• Policy decision to place the onus of investigation on the purchaser bc NY is a cultural center and placing the burden on the true owner would encourage illicit trafficking in stolen art, as after SOL purchaser would have title, in good faith or not, unless owner could provide evidence of a reasonable search. Laches may still apply (possible backdoor imposition of due diligence)