PROPERTY Flashcards Preview

property > PROPERTY > Flashcards

Flashcards in PROPERTY Deck (95)
Loading flashcards...

elements of adverse possession

1. actual entry of the land
2. possess the land
3. exclusive possession
4. uninterrupted, continuous use (not constant)
5. hostile/adversely
6. all under the statute of limitations


interruptions to statute of limitations under adverse possession

- if O kicks out APsr
- O files suit against APsr
- close or fence the land in a way that bars the APsr from entry


hostile element for adverse possession

- does not require that the possessor demonstrate ill will
- needsd to possess the land in contradiction to the owner's interest and act as the owner
- possessor enters the land without permission from O


3 different views of hostile element

1. don't care if it was in bad faith when APsr came onto land, just that they did it... open and notorious is good enough
2. has to be in good faith
3. has to be in bad faith


purpose of AP

1. quieting titles - MOST IMPORTANT - to punish O for sleeping on his right
2. assuring maximum use of land
3. encouraging the rejection of state claims


governmental land and AP

- most statutes prevent AP claims against land held by government for public use
- when land is not held for public use statutes vary


visible open and notorious for AP

- possession must be sufficiently apparent to put the true owner on notice that a trespass is occurring
- gives O the opportunity to stop the AP
- SC held that lack of actual knowledge is not a defense


uninterrupted use for AP

- intermittent periods of occupancy are not sufficient BUT constant use is not required so long as possession is of a type that the usual owner would make
- seasonal use sufficient


statute of limitations for AP

if O fails to sue an APsr within the time allowed by statute of limitations, APsr may acquire title


disability in AP

- if O is under disability the SL for AP does not run if APsr came onto land while disability was present
- SL is not tolled or suspended if O's disability arises after APsr comes onto land


common disabilities for AP

- mental illness
- minority status
- imprisonment



do not acquire title by AP because no formal intention to claim the land


easement by prescription elements

1. actual use
2. continuous without interruption
3. open and notorious
4. hostile
5. for period of statute of limitations
6. exclusive - SPLIT OF AUTHORITY - prove that X was the only one using the easement


affirmative easement

gives its holder the right to do something on another's land (ST)


easement by implication

- implied from prior or existing use
- arise by necessity, quasi-easements or by reference to a plat


servitudes (list)

1. easements
2. real covenants
3. licenses
4. profits
5. equitable servitudes


color of title for AP

- where possessor has an invalid document that suggests he has a recorded claim that transfers him legal ownership
- shorter SL - certain states allow APsr claiming under color of title to have shorter SL
- extends to boundaries of document, not just where APsr possessed


courts will imply easement by implication if...

1. the previous use was readily apparent
2. the parties reasonably expected the use to survive division because it is reasonably necessary to B's continued use and enjoyment of his lot


necessity majority/minority

- majority - require a showing of reasonable necessity to imply easement by necessity
- minority - strict necessity... if there is another way to and from the landlocked parcel, it must be utilized


quasi easement elements

1. unity of title - common ownership at time when estate was transferred
2. severance
3. apparent and continuous use
4. land was transferred


easement by reference to a plat

where conveyance of land describes the property by reference to a plat upon which a street is depicted, an easement is implied over the entire street for the benefit of the lots represented in the plat


appurtenant easement

- benefits the easement holder in his physical use or enjoyment of the his own land
- 2 parcels of land must be involved
- transferred automatically with DT regardless of whether it is mentioned in the transfer


dominant tenement

benefitted parcel which derives an advantage thanks to the easement


servient tenement

burdened parcel which suffers the imposition of the easement


easement in gross

- confers upon the holder only a personal or commercial gain, not linked to the easement holder's use and enjoyment of the land
- only involves the ST because 1 parcel of land is involved
cannot be transferred unless commercial


negative easement

- entitles holder to compel the O of ST to refrain from doing something that would otherwise be permissible
- disfavored
- must be crated expressly in signed writing


negative easements may be acquired for...

1. light (most common)
2. air
3. streamwater
4. in CA scenic views


scope of easement

- reasonable change permitted to express easement, unless limited in some way
- right to improve easement - DT has right to improve so long as it does not result in overburden to ST
- right to permit others to use
- limits to changes by D or S estate


termination of easement

- estoppel
- necessity ends
- destruction of ST
- condemnation of ST by governmental entity
- release
- abandonment
- merger doctrine
- prescription


merger doctrine for termination of easements

when title to the easement and title to the ST become vested in the same person