Chapter 2 - Owning Real Property

Question 1

What are the elements of “adverse possession?”

Answer 1

1) actual possession 2) exclusive possession 3) open and notorious possession 4) adverse and hostile possession 5) continuous possession and 6) statutory period

Question 2

Real property

Answer 2

Rights in land and things attached to land

Question 3

History of real property:

Answer 3

Homestead act of 1862 - government sought to transfer wild lands to private ownership to facilitate national development.

Question 4

AP actual possession

Answer 4

Physically use land in same manner or more intensively than a reasonable owner would given its character location and nature.

Question 5

Ap exclusive possession

Answer 5

Cannot be shared with owner or public

Question 6

Ap open and notorious

Answer 6

Visible and obvious (if owner made reasonable inspection, he would become aware)

Question 7

Ap adverse and hostile

Answer 7

Most complex element. Possession authorized by owner does not meet. In a majority, the possessor’s mindstate is irrelevant.
“Good faith” (minority) ap believes in GF he owns the land
“Bad faith” (minority) claimant intends to take title from owner.

Not about Ill will or malice, but does imply intent to hold title against the record title holder.
Hostility may be implied as long as all other elements are met.

Question 8

AP continuous possession

Answer 8

Continuous as a reasonable owner’s would be given character, nature and location of land. Doesn’t have to be 24/7, rather what is the nature of the property (ex summer rental)

Question 9

Statutory period

Answer 9

Ranges from 5-40 years. Most common are 10, 15, 20.

Question 10

Justifications for AP

Answer 10

1) preventing frivolous claims 2) correcting title defects 3) encouraging development 4) protecting personhood.

Question 11

AP partial exclusivity

Answer 11

Only get possession for small portion of land that you actually possess, unless you have color of title.

Question 12

Color of title

Answer 12

Refers to a deed, judgment or another written document that is invalid for some reason.
Enhanced protection for AP whose claim is based on color of title.
Payment of taxes (not an essential element at CL)
Payment of taxes per of color of title (ML)

Question 13

AP tacking

Answer 13

Ap periods of two or more successive occupants may be added together to meet the statutory period.
Most states allow tacking only if successive occupants in privity.

2 kinds:
Spacial: person claims more land than described in deed
Privity: successive chain of ap’s

Question 14

Privity

Answer 14

Legal relationship - permission of occupancy to someone else via deed or title.

Question 15

Ap / disability

Answer 15

Statutory period for ap May be extended due to disability (in prison, minority status, mental capacity, some j’s military service)

Majority: only disability that exists at beginning of AP period will extend the Statutory period

Question 16

AP identity of parties

Answer 16

Usually AP made against party who holds fee simple absolute / complete title
If made against life estate, AP gets life estate

Question 17

Vertical dimension of ownership

Answer 17

CL: landowner’s title extends up to havens and down to center of earth
Cujus est solum, ejus est usque ad Coleum et ad inferno

ML: ownership to the heavens collapsed with advent of airplane
Owner entitled to airspace immediately above property.

Question 18

Easement

Answer 18

Non-possessory right to use the land in possession or ownership of another person.

Question 19

Causby

Answer 19

Flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with enjoyment of and use of the land.

Question 20

Subsurface rights

Answer 20

CL: down to center of earth
Lateral support - to have land supported by adjacent parcels of land
Subjacent support - to have land in nature condition be supported by land immediately below it.
ML: impossible to know how deep property rights extend.

Question 21

Surface water

Answer 21

3 approaches:
Riparian (eastern states, assigns water rights to each landowner whose property ajoins a watercourse, reasonable use doctrine: riparian owner can take water for reasonable uses on her land but not to unreasonably interfere with the rights of other riparian owners)

Prior appropriation system:
Western states, location of landowner’s land irrelevant, water rights are allocated to the first person to divert the water for beneficial use.

Permit system:
Gov effectively regulates the amount of water that may be withdrawn.

Question 22

Ground water (aquifers, etc)

Answer 22

Rules developed differently. 19th century England seen as much less important than surface water.
CL absolute ownership rule (rule of capture - owner could use as much as he wanted even if it caused hardship.

3 Modern approaches:
Reasonable use:
Majority, surface owners may use groundwater only for reasonable use on overlaying land.

Correlative rights:
Surface owner entitled to a proportional share of groundwater beneath land

Permit system
Can only secure rights by permit (vested in state)

Question 23

Negative externality

Answer 23

Cost not considered in decision making process