Possession Flashcards
Possession of wild animals
Ownership of a wild animal is acquired by possession (capture or occupancy). Pursuit alone is not enough.
Possession/occupancy include:
-Physically capture;
-Trap; or
-Mortally wound
Exception to the rule: landowner has constructive possession of any wild animals on his land (attempts to protect against trespass to land)
Right to exclude (civil trespass)
Private landowners’ right to exclude others is one of the most essential property rights; owners don’t need to give a reason to exclude
Defenses against right to exclude
-Necessity (if enough evidence is presented that there aren’t any reasonable legal alternatives)
-Discrimination
Correlative Rights (NC’s solution to Tragedy of the Commons regarding natural resources)
Treats each body of oil as one unit and each landowner gets % of interest based on % of oil corresponding to surface ownership
Law of Finders
finders win against all but the true owner or prior possessors; true owner always prevails unless property was abandoned
Lost property
casually and involuntarily left somewhere
RULE: Finder prevails against all but true owner or prior possessors
Mislaid property
intentionally put aside but later forgotten (e.g., intentionally put your phone down at Starbucks and then forget it)
If land is public, it belongs to the finder
Abandoned property
intentionally disposed of (e.g., thrown out watch); note that abandonment isn’t presumed and usually requires affirmative act by the owner or custom
RULE: Finder prevails!
Treasure Trove
valuables buried in the land of another
Adverse Possession
OCEAN + Statutory Period
O - Open and Notorious
-If the adverse possessor’s act would be noticed by an ordinary person, then the owner is regarded as knowing what should’ve been known
-Penalizes the “negligent and dormant owner for sleeping on his rights”
C - Continuous and uninterrupted
-Depends on the nature of property (residential v. farm)
-Possession must be continuous for the SoL period, but not literally constant
-Successful ejectment action can be filed is true owner disrupts their period of poss by reentering the property
E - Exclusive possession
-Absolute exclusive possession isn’t required, but the adverse claimant can’t share possession w/ the true owner or the public in general
-Note: couples are treated as 1 unit
A - Actual entry
-Entry is the cause of action that triggers the statute
N - Non-permissive (a/k/a hostile)
-Showing a clear, distinct, and unequivocal intention to possess property as if you are its true owner
-Most cts don’t care about your state of mind, but how your possession was exercised
-NC assumes permissive use (so AP needs to do extra to show possessed adversely/without permission)
-Note: bad faith isn’t required for hostility (mistake counts as AP)
Statutory period → must check jurisdiction
Disabled people and AP
SoL will not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession (includes infancy, insanity and imprisonment)
Thus, if O, the true owner of Blackacre, is a minor at inception of AP, or insane, or in prison, or in a coma, SoL will not run against him or her.
Color of Title
a claim founded on a written instrument (deed or will) or judgment or decree that is for some reason defective and invalid
In a few states, color of title is essential to acquiring title by AP
Actual possession under color of title of only a part of the land covered by the defective writing is constructive poss of all that the writing describes
3 advantages from Color of Title
(1) Evidence of clear intent to claim property as its owner
(2) Reduced statutory period (7 yrs as compared to 20 in NC)
(3) Constructive possession of the entire parcel “conveyed” (e.g., 100 acres even though you only occupied 1 acre)
Note: this only applies if the true owner doesn’t occupy any of the land
Special situations in which adverse possession cannot occur
Gov’t owns land
Owner has legal disability
Owner has mortgage (no SoL until foreclosure)
Someone owns future interest in prop (can’t adversely possess FIs)
Tacking
Current adverse occupant may add the time of prior adverse occupant for purpose of meeting statutory period of adverse possession
tacking between 2 adverse possessors is usually only permitted when they’re in privity of estate with each other
→ can’t just tell someone you’re leaving land; need more
For purposes of AP, courts require a purported conveyance of land from A to B.
Adverse Possession of Stolen Chattel
Discovery Rule → cause of action accrued when owner first knew, or reasonably should have known the cause of action, including the identity of the possessor of the chattel
Burden of proof is on the owner of the personal property
Conduct of the true owner, not the possessor, is controlling
