Real Property- Adverse Possession Flashcards
Real Property Definition
consists of rights in land and things attached to land, such as buildings, fences, and trees.
Personal Property Definition
moveable items and intangible things
Fixtures: personal property attached to real property.
Justifications for adverse possession
serves as statute of limitations
Correcting title defects
encouraging development of land
protecting personhood
Majority Rule- Elements of Adverse Possession
actual possesion
exclusive possession
open and notorious possession
adverse and hostile possession
continuous possession for the required statutory period
Quiet title action
resolves disputed title (of any kind)
Continous Possession
- dont have to be there every day; just occupy how an owner would based on the nature of the property (ex. beach house, rural housing, urban housing)
Gurwit v Kannatzer (adverse possession)
There was adverse possesion even though D’s son cut a tree on that property once and them and their predecessors had included it in their taxes.
- Ds son had asked permission to cut tree, by P giving permission, he exercised dominion over land.
- Note: The moment P found they didn’t have a record title to it, he paid taxes on it.
Van Valkenburgh v Lutz ( no adverse possession)
No adverse possession because it failed to satisfy cultivation, improvement, and claim of title (declaration against interest; easement)
- lost because they knew land wasn’t theirs and they did not improve land they just put junk there, need structural and aesthetic improvement
Exclusive possession
You’re the only party using it. If at any moment you try to get consent from record owner, you lose exclusivity.
Adverse Possession- Color of Title
- utilitarian theory
- any written document, accurate or not, that shows you own land
Constructive adverse claimant under color of title
- some states will give you extra land, even if you haven’t used that part of the land continously
State of mind for adverse and hostile elements
- record owners consent destroys a claim of adverse possession because the claimant interest/ possession is no longer hostile to the record owner
Fulkerson v VanBuren
Intent to adversely possess must be clear, distinct, and unequivocal
Requires intent to claim the land under right, title, or ownership, NOT in conformity, recognition, or subservience to the superior right of the true owner.
- Van buren asked Fulkerson to sign quit claim deed—asking for consent (subservient) – recognized him as owner
- 7 years started in 1985. Didn’t realize they didn’t own till 1991; it hadn’t been 7 years
Tioga Coal v Supermarkets
- There is no way to have other elements of adverse possession without being hostile, no matter the state of mind.
Tacking
Periods of adverse possession of two or more successive
occupants can be added together to meet the statutory
period.
Privity is requied- Privity can be established by showing a direct transfer of
the property interest from one party to the next (such as in a will or a deed) (think of nexus)
Howard v Kunto ( wrong parcel)
May a person who receives record title to Tract A under mistaken belief he has
title to Tract B (Kunto) and who subsequently occupies Tract B, tack the periods of possession of Tract B by his immediate predecessors?
Yes. Tacking is permitted if AC can show privity, and a deed or other document
is not necessary to establish privity. Kunto established a “reasonable
connection” between himself and his predecessors, so as to raise himself
above status of wrongdoer or trespasser.
Acquiring Property from Record Owner
Adverse Claimant can only acquire property interest of RO, and nothing more. If RO has a life estate, the Adverse Claimant cannot acquire fee simple title (beyond your lifetime) because you cannot adversely claim what the record owner didn’t own.
AP cannot be asserted against federal or state government.
