Prescriptive Easements Flashcards
Elements of Prescriptive Use
Actual Open & Notorious Hostile [and Under a Claim of Right] Continuous and Uninterrupted Prescribed Period
Open and Notorious
The claimant’s use must be sufficiently visible and apparent that a diligent owner who was present on the land would be able to discover the claimant’s use.
The use must not be hidden or concealed but it is NOT necessary the true owner have actual knowledge of the use.
Hostile and Under a Claim of Right
The use must interfere with the title owner’s rights to use the property.
Majority: The claimant must use the land as a reasonable owner would use it and without permission from the title owner.
Minority: The claimant must use the land without permission and have a good faith believe she is entitled to use the land.
Exceptions to Presumption of Hostility
Wild Lands:
If the land that is used is wild, unenclosed or unimproved, then the use is presumed to be permissive.
This presumption is based on fact that a presumption of hostile/adverse use would place too high a burden on the true owner of wild lands.
Exceptions to Presumption of Hostility
Compatible Use:
If the true owner of property constructs a way over his own land for his own use, and others use that road or path in such a way that does not interfere with the true owner’s use, then the use is presumed to be permissive.
How Presumptions Work
Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence.
Rebuttable Presumption
A rebuttable presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption with contrary evidence.
Irrebuttable Presumption
An irrebuttable presumption cannot be overcome by any additional evidence or argument – it conclusively determines the disputed fact.
Continuous and Uninterrupted
The claimant’s use must be as continuous and frequent as is appropriate given the location, nature and character of the land.
The record owner must not succeed in stopping the claimant’s use – even for a short time – or the period restarts.
Prescribed Period
The claimant must use the property (as described in all previous elements) for the period prescribed by applicable law.
Common Law: 21 years Statutes: 5 – 40 years
Most common periods are 5, 10, 15, & 20 years
Right to Exclude
The right to exclude gives rise to the true owner’s claim for trespass and an action for ejectment of the trespasser.
Trespass: The intentional entry onto land owned or occupied by another, without privilege.
Ejectment: A legal action by which a person wrongfully excluded from property seeks to recover possession, damages, and costs.
Elements of Common Law Adverse Possession
Possession that is: Actual (or Constructive) Exclusive Open & Notorious Adverse and Under a Claim of Right Continuous and Uninterrupted Prescribed or Required Period
Color of Title: Defined
“Color of Title” exists when an adverse possessor:
- makes a claim to the land based on a document (such as a deed or will);
- the document purports to transfer title; and
- the document is legally defective.
Continuous and Uninterrupted
Continuous: The claimant’s possession must be not be abandoned and as frequent as is appropriate given the location, nature and character of the land.
Uninterrupted: The record owner must not succeed in stopping the claimant’s possession – even for a short time – or the period restarts. Most effective interruption is filing lawsuit, but exercise of dominion and control may suffice.
Prescribed Period
The claimant must possess the property (in the manner described in all previous elements) for the period prescribed by applicable law.
Common Law: 21 years
Statutes: 5 – 40 years
Calculating Time: Tolling
Tolling: In calculating the period under the SOL, subtract the time the title owner is legally “disabled” from protecting his property.
Disability: typically includes under age of majority, mentally incompetent, imprisoned
Majority: The period will be tolled only if the disability exists at the time AP enters.
Minority: The period will be tolled anytime the TO suffers a disability.
Calculating Time: Tacking
In calculating the period under the SOL, add the time a predecessor in privity adversely possessed the property.
Privity: Is a nexus or relationship that exists when one person voluntarily transfers her possessory rights to the next possessor.
Privity does NOT exist when one person ousts another or simply trespasses after the other abandons the property.
Open
The claimant’s conduct must be sufficiently visible and apparent that a diligent owner who was present on the land would be able to discover the claimant’s use. The conduct must not be hidden or concealed but it is NOT necessary the true owner have actual knowledge of the conduct.
Notorious
The claimant’s conduct must be sufficiently visible and apparent that it could communicate his exclusive possession to the community or neighborhood in which the parcel is situated—thereby giving notice to the world.
Something is NOT Adverse or Hostile when
The element of “adverse” or “hostile” is NOT met if adverse possessor has permission.
If not permissive, then the courts apply one of three tests regarding the adverse possessor’s state of mind:
Objective (Majority)
Subjective (Minority)
–Good Faith
– Intent to Claim (or Intentional Trespasser)
Adverse and Under Claim of Right
The conduct must interfere with the title owner’s rights to possess the property and evidence the adverse possessor’s claim of right.
Claim of Right – Three Test
Objective Test:
–AP’s state of mind is irrelevant, we only
evaluate his/her conduct.
Subjective Tests:
- -Good Faith: AP must believe, in good faith, that s/he owns or holds title to the land.
- -Intent to Claim: AP must (1) know that s/he does not actually own or hold title to the land; and (2) subjectively intend to take title from the TO.
A.P. Special Rules for Gov’t Entities
At common law, land owned by government was immune from AP. Some states now have statutes that authorize AP for some types (mostly proprietary) property.
A.P. Special Rules for Co-Tenants
Co-tenant in possession must clearly claim exclusive rights and “oust” other co-tenants.
A.P. Special Rules for Landlords/Tenants
If tenant repudiates status and claims rights or holds over after tenancy ends, then AP period runs.
A.P. Special Rules for Future Interest Holders
Has no rights to possession– so no AP claim can accrue against future interest holders until future interest becomes a present posessory estate.
Mutual Recognition and Acquiescence
The line must be well defined and physically designated on the land;
In absence of an express agreement, the neighbors must have in good faith manifested a mutual recognition and acquiescence in the line;
The mutual recognition and acquiescence must have continued for the prescribed period for AP claims.
Estopple Principles
The true owner is estopped from reclaiming title to a dispute parcel because:
- The true owner made representations to the other party as to the location of the boundary;
- The claimant detrimentally and reasonably relied upon such representations; and
- The claimant would be unduly injured if the true owner were permitted to recover possession now.
Good Faith Improver
An improvement is mistakenly made on land owned by another and the improver acted in good faith and under a claim of right, then the improver will be entitled to relief if the true owner, after he knew of the mistaken improvement, failed to act or otherwise engaged in misconduct.
