Property

Question 1

What are the elements of adverse possession?

Answer 1

The elements of adverse possession (or easement by prescription) are possession which is

(1) open and notorious (if it would put a reasonable person on notice that it was occurring);
(2) actual and exclusive possession (if only the possessor uses the property);
(3) continuous (constantly being used for the purpose and in the manner reasonably and normally intended)—don’t forget tacking and privity of ownership among successive owners;
(4) hostile (lack of the owner’s permission);
(5) for the statutory period.

Question 1

Creation and severance of a joint tenancy

Answer 1

Creation of a joint tenancy requires the existence of the four unities:

• time,
• title,
• interest (same type and duration), and
• possession.

A joint tenancy includes a right of survivorship. Accordingly, the title must indicate a right of survivorship or it is not a joint tenancy.

Unless otherwise stated, title in co-owners is presumed to be a tenancy in common.

A joint tenant can, by conveyance to a third person, sever the joint tenancy and create a tenancy in common.

Question 1

What is waste; what are the types of waste; and what are the remedies for each type?

Answer 1

Waste is an act by someone in rightful possession of property that does permanent injury to the land, harming the interest of someone entitled to future possession. There are three types of waste: voluntary; permissive; and ameliorative.

• Voluntary Waste is a deliberately destructive act.
  
  • In addition to an injunction, the remedies include damages measured either by the diminution in value of the property both before and after the injury, or by the cost of repairs. In addition, statutes may permit treble damages.
• Permissive Waste are acts of omission or neglect.
  
  • The only real remedy is damages for the cost of repairs.
  • An injunction usually is unavailable because it would require affirmative acts.
• Ameliorative Waste are acts that alter the property but result in an increase in value.
  
  • Damages are not recoverable.
  • An injunction depends on the facts of a case, so a short-term tenant might be enjoined from making substantial changes, but a long-term tenant might not be so enjoined.