Prescriptive Easements

Question 1

Elements of Prescriptive Use

Answer 1

 Actual
 Open & Notorious
 Hostile [and Under a Claim of Right]
 Continuous and Uninterrupted
 Prescribed Period

Question 2

Open and Notorious

Answer 2

 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.

Question 3

Hostile and Under a Claim of Right

Answer 3

 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.

Question 4

Exceptions to Presumption of Hostility

Wild Lands:

Answer 4

 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.

Question 5

Exceptions to Presumption of Hostility

Compatible Use:

Answer 5

 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.

Question 6

How Presumptions Work

Answer 6

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.

Question 7

Rebuttable Presumption

Answer 7

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.

Question 8

Irrebuttable Presumption

Answer 8

An irrebuttable presumption cannot be overcome by any additional evidence or argument – it conclusively determines the disputed fact.

Question 9

Continuous and Uninterrupted

Answer 9

 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.

Question 10

Prescribed Period

Answer 10

 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

Question 11

Right to Exclude

Answer 11

 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.

Question 12

Elements of Common Law Adverse Possession

Answer 12

Possession that is:
 Actual (or Constructive)
 Exclusive
 Open & Notorious
 Adverse and Under a Claim of Right
 Continuous and Uninterrupted
 Prescribed or Required Period

Question 13

Color of Title: Defined

Answer 13

“Color of Title” exists when an adverse possessor:

1. makes a claim to the land based on a document (such as a deed or will);
2. the document purports to transfer title; and
3. the document is legally defective.

Question 14

Continuous and Uninterrupted

Answer 14

 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.

Question 15

Prescribed Period

Answer 15

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

Question 16

Calculating Time: Tolling

Answer 16

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.

Question 17

Calculating Time: Tacking

Answer 17

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.

Question 18

Open

Answer 18

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.

Question 19

Notorious

Answer 19

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.

Question 20

Something is NOT Adverse or Hostile when

Answer 20

 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)

Question 21

Adverse and Under Claim of Right

Answer 21

The conduct must interfere with the title owner’s rights to possess the property and evidence the adverse possessor’s claim of right.

Question 22

Claim of Right – Three Test

Answer 22

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.

Question 23

A.P. Special Rules for Gov’t Entities

Answer 23

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.

Question 24

A.P. Special Rules for Co-Tenants

Answer 24

Co-tenant in possession must clearly claim exclusive rights and “oust” other co-tenants.

Question 25

A.P. Special Rules for Landlords/Tenants

Answer 25

If tenant repudiates status and claims rights or holds over after tenancy ends, then AP period runs.

Question 26

A.P. Special Rules for Future Interest Holders

Answer 26

Has no rights to possession– so no AP claim can accrue against future interest holders until future interest becomes a present posessory estate.

Question 27

Mutual Recognition and Acquiescence

Answer 27

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.

Question 28

Estopple Principles

Answer 28

The true owner is estopped from reclaiming title to a dispute parcel because:

1. The true owner made representations to the other party as to the location of the boundary;
2. The claimant detrimentally and reasonably relied upon such representations; and
3. The claimant would be unduly injured if the true owner were permitted to recover possession now.

Question 29

Good Faith Improver

Answer 29

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.