Real Property

Question 1

Adverse Possession

Answer 1

Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is:

1. Continuous for the statutory period (seasonal or infrequent use will suffice if the use is consistent with the type of property being possessed).
2. Open and notorious (the adverse possessor must use the property as if they were a true owner - their possession cannot be hidden from the true owner);
3. Exclusive (the adverse possessor cannot share possession of the land with the true owner); AND
4. Hostile (the adverse possessor cannot have the true owner’s consent to possess or use the property).

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Tacking. An adverse possessor can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement if the adverse possessors are in privity with one another (i.e., the transfer of land was voluntarily agreed upon).

Disabilities. The statutory period will not run against a true owner who had a disability (e.g., insanity, imprisonment, etc.) at the time the adverse possession begun.

Question 2

Deed Requirments

Answer 2

A valid deed must:

1. Satisfy the statute of frauds;
2. Identify the parties and describe the property;
3. Be delivered (a deed is delivered when the grantor demonstrates a present intent to transfer the property to the grantee or his agent - physical transfer of a deed is not required); AND
4. Be accepted (acceptance is generally presumed).

Question 3

Delivery of Deed

Answer 3

A valid deed must be delivered and accepted.

A deed is delivered when the grantor demonstrates a present intent to transfer the property (physical transfer of a deed is not required - present intent can be demonstrated orally).

A deed is NOT delivered if the delivery is revocable (e.g., “I will transfer you this property in 3 weeks, unless I change my mind before then”).

A grantor can make a valid delivery to an agent (e.g., a grantor can deliver a deed to his attorney with clear instructions to deliver it to the grantee).

Acceptance is generally presumed provided that the transfer is for value.

Question 4

Recording Statutes

Answer 4

Under the common law, if a grantor transfers the same piece of property to multiple grantees, the first grantee to receive the deed acquires rightful title. In the absence of a recording statute, the common law rule controls.

However, there are three types of recording statues that have been adopted by the states to resolve competing claims to title:

Race Statutes. The first grantee to record acquires title, regardless of notice.

**Notice Statutes. **A subsequent purchaser acquires title if the purchase is made without notice of a prior unrecorded conveyance.

Race-Notice Statutes. A subsequent purchaser acquires title if the purchase is made without notice of a prior unrecorded conveyance AND the subsequent purchaser records first.

Question 5

Notice

Answer 5

There are three types of notice:

Actual Notice. A subsequent purchaser has actual notice when he has personal knowledge of a prior interest.

Constructive Notice. A subsequent purchaser is on constructive notice when the prior interest is recorded (i.e., validly recording a deed by publicly registering it automatically puts the entire public on notice).

Inquiry Notice. A subsequent purchaser has inquiry notice when a reasonable investigation would have revealed the existence of prior claims (e.g., someone is clearly living on the property in question).

Question 6

Leasehold

Answer 6

The relationship between a landlord and a tenant can create four types of possessory estates (tenancy for years, periodic tenancy, tenancy at will, and tenancy at sufferance).

This relationship is generally governed by a contract (the “lease”), which contains the covenants of the parties.

Generally, each party must perform his promises pursuant to the lease whether or not the other party performs his promises.

Question 7

Lease Assignments & Sublease

Answer 7

An assignment is a complete transfer of the tenant’s entire remaining term under the lease. In an assignment, the landlord can collect rent from the assignee or the original tenant.

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A sublease is a transfer of less than the tenant’s entire remaining term under the lease. In a sublease, the landlord can ONLY collect rent from the original tenant. The subtenant ONLY has rent obligations to the original tenant.