Real Property

Question 1

Rights in land, airspace, and things physically attached to land

Answer 1

• Owning : freehold estates and future interests in those estates
• Leasing : nonfreehold estates and future interests in those estates
• Non-possessory interests : mortgage , easement , real covenant, equitable servitude, water right, or judgment lien

Question 2

Adverse possession

Answer 2

How an occupant obtains a title to land

Question 3

Elements of Adverse Possession

Answer 3

-actual
-exclusive
-open and notorious
-adverse and hostile
-continuous

Question 4

Actual Possession

Answer 4

Claimant must physically use the land in the same manner a reasonable owner would given its character, location and nature, at a minimum.

Question 5

Exclusive Possession

Answer 5

Possession cannot be shared with the owner of the public in general.

Question 6

Open and Notorious

Answer 6

Possession must be visible and obvious so that an owner who made a reasonable inspection would become aware of the adverse claim.

Question 7

Adverse and Hostile Possession

Answer 7

Split of authority - Majority view ignores the claimant’s state of mind; some require good faith; a few may require bad faith.

Question 8

Continuous Possession

Answer 8

Possession must be as continuous as a reasonable owner’s possession would be.

Question 9

Statutory Period

Answer 9

Ranges from 5- 40 years; commonly 10-20 years.

Question 10

Rationales for Adverse Possession

Answer 10

• Prevent frivolous claims?
• Correct title defects?
• Encourage development?
• protect personhood?

Question 11

Adverse possessor’s state of mind

Answer 11

• Objective test: in most jurisdictions, the adverse claimant’s state of mind is irrelevant. If he occupies the land without the permission of the owner and meets the other adverse -possession requirements, the test is met.
• Good Faith Test: in some jurisdictions, the adverse claimant must believe in good faith that he owns the land
• Bad faith test : A few decisions suggest that the adverse claimant must know that he does not own the land and intended to take title from the owner.

Question 12

Vertical dimension

Answer 12

Traditional view: In theory, the serface owner’s title extended upward to the heavens and downward to the center of the earth.

Modern law: Courts have increasingly modified this absolutist approach, through the precise upward and downward limits are far from clear.

Question 13

Rights in surface water

Answer 13

• Riparian system : allocates water rights to landowner whose property adjoins a river, stream, lake, or other watercourse for reasonable uses on that land; but this cannot unreasonably interfere with the rights of other riparian owners.
• Prior Appropriation system : allocates water rights to landowner who first diverts water for beneficial use, even if her property does not adjoin a watercourse.
• Permit system: allocates water rights to landowner who receives a permit from the state.

Question 14

Rights in Groundwater

Answer 14

_ Reasonable use: surface may use groundwater for a reasonable use on the overlying land
- correlative rights ; surface owner is entitled to a proportionate share of the groundwater beneath his land.
- Permit system : surface owner must obtain permit from state in order to use ground water.