Property Final

Question 1

True Owner v Adverse Possessor

Answer 1

Remedy: Ejectment
Defense: Adv. Possession

Question 2

Adverse Possessor v True Owner

Answer 2

Quiet title action

Question 3

Elements for Ejectment

Answer 3

Defendant is in wrongful possession and;

Plaintiff has a legal right to possession
(All causes of action are subject to statute of limitations)

Question 4

What is Adverse Possession

Answer 4

Elements/Prima Facie case for ejectment, Plaintiff must show that
Defendant is in wrongful possession and;
plaintiff has a legal right to possession

Statute of limitations
After period of time, the True Owner cant bring Ejectment
True Owner loses the right to bring c/a for Ejectment

Property rule of first in time, first in right
The “first” possessor has greater rights than any subsequent possessor, other than the true owner

Question 5

What are the rights/liabilities of True Owner and Adverse Possessor(s)

Answer 5

True Owner may bring ejectment against wrongful possessor within statute of limitations [TO v AP]

True Owner loses right to bring c/a ejectment after statutory period

No other person (other than True Owner) may bring ejectment against AP

Wrongful Possessor (AP1) may bring ejectment against anyone who later intrudes or possesses property (AP2). (First in time, first in right). AP1 beats AP2 and ROW

Question 6

TO can no longer bring the cause of action

Answer 6

If and when the TO can no longer bring the cause of action for ejectment against Adverse Possessor, then under doctrine of Adv-poss,

Adverse Possessor becomes the “true owner”

At this point, Ap’s rights cannot be defeated

Question 7

Elements of Adverse possession
(Duration - Statue of Limitations)

Answer 7

Continuous

Uninterrupted

Length of Time

Tacking & Disabilities

Question 8

Elements of Adverse possession
(Possession Ejectment)

Answer 8

Actual Possession of Land (an “entry”)

Exclusive

Open & Notorious

Hostile & Adverse (claim of right)

Question 9

Elements of Adverse possession (Possession Ejectment) Actual Possession of Land (an “entry”) Without Color of title

Answer 9

Adverse possession by a person claiming title not found upon a written instrument
Land is deemed to have been possessed and occupied in either of the following cases, and no others
Substantial enclosures
Cultivation
Improvements

Question 10

Elements of Adverse possession (Possession Ejectment) Actual Possession of Land (an “entry”) With Color of title

Answer 10

If adverse Possessor had color of title, then Adverse Possessor acquires
Land actually possessed; and
Land constructively possessed

If color of title, land is “deemed” to have been possessed even though AP actually “possessed” only a smaller portion of the property

Land is deemed to have been possessed and occupied in either of the following cases:
Improvements
Cultivation
Substantial Enclosures

Question 11

Elements of Adverse possession (Possession
Ejectment) Open & Notorious

Answer 11

Minor encroachment, TO has actual notice (not exceeding several feet)
Actual knowledge (Encroachment is minor)
If encroachment does not exceed several feet

Material encroachment, TO has presumption of notice (exceeding several feet) Imputed knowledge (encroachment is material)
If exceeding several feet

Question 12

Open and Notorious issue

Answer 12

Does TO have notice?

Question 13

Hostile and Adverse Issue

Answer 13

The nature of intent

Question 14

Elements of Adverse possession (Possession
Ejectment) Exclusive

Answer 14

Not an easement: non-exclusive right to use
- Identify type of right
- Possession v License v Right
`

Question 15

Elements of Adverse possession (Possession
Ejectment) Hostile & Adverse (claim of right)

Answer 15

Hostile & Adverse (claim of right)
- Intent Doesn’t Matter - Objective (CT rule)

• Intent of AP - Good faith/Mistaken Belief (NY Rule)
• Intent of AP - Bad Faith/Active Trespasser (Maine Rule)

Question 16

Elements of Adverse possession - Duration
(Statute of Limitations)
Continuous

Answer 16

Ordinarily marks the conduct of owners in general in holding, managing and caring of property of like nature and condition

Question 17

Elements of Adverse possession - Duration
(Statute of Limitations)
Uninterrupted

Question 18

Elements of Adverse possession - Duration
(Statute of Limitations)
Length of Time

Answer 18

• Determined by statue of limitations

Question 19

Unlawful entry

Answer 19

Any unlawful entry is “hostile” since it is without right

Question 20

Unlawful entry Majority view

Answer 20

Even the good faith mistaken possessor can claim “adverse” possession (requisite hostility). This is now the majority view.

Question 21

State of mind & Intent of AP does matter (examine the subjective intent of AP) The Bad Guy

Answer 21

Maine Doctrine (Prior NJ rule)

Examine the subjective intent of AP

Requires a knowing wrongful taking.
Active/Aggressive

Trespasser

Punishes the adverse possessor who is mistaken in good faith

Question 22

State of mind & Intent of AP does matter (examine the subjective intent of AP) The Good Guy

Answer 22

AP must have good faith belief thats/he owns the land (even if mistaken)

NY is an example (NY RPaPL 501(iii))

Question 23

Open and Notorious
Material - Presumed or imputed Notice

Answer 23

If possession of land is clear & unequivocal as to be immediately visible

To permit a presumption of notice to arise in the case of a minor border encroachment not exceeding several feet would fly in the face of reality and require TO to be on constant alert for possible small encroachments

Question 24

Open & Notorious

Minor - TO must have actual notice

Answer 24

If “small area” and the fact of the intrusion is not clearly and self-evidently apparent to the naked eye but requires an on-site survey

Applies where the precise location of the dividing line is ordinarily unknown to either TO or AP and there is nothing on the land to show by visual observation the extent of the encroachment

Question 25

Walling v Przybylo

Answer 25

Knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possession OK if AP is an “active” trespasser Conduct prevails over knowledge

Question 26

NY RPAPL 501 (2008)

Answer 26

Statute defines “claim of right” as a reasonable basis to believe that property belongs to AP (i.e., a “good guy”) AP gains title upon expiration of S/L for ejectment so long as… Adverse, claim of right, open & notorious continuous, exclusive, & actual

Question 27

Continuous Only a certain period of time

Answer 27

Continuity of possession may be established although the land is used regularly for only a certain period each year

Question 28

Continuous - Tacking

Answer 28

The requirement of “Privity” is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer of the trespasser The deed running between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate which connects the possession of the successive occupants

Question 29

2 Tacking situations

Answer 29

Tacking successive possession by AP Tacking where AP asserts against series of TO’s

Question 30

Once there is an entry against Owner

Answer 30

AP begins - it will not be defeated or interrupted by subsequent transfers by Owner, whether by deed/sale, or by will or by intestacy

Question 31

Everything relates back to the state of TO’s title

Answer 31

at the time AP entered on the property (“magic glasses”)

Question 32

If Adverse Possessor enters when title is Life estate

Answer 32

Then after the statue of limitation is over, they have The life estate of the current owner and once they die and title changes to the reminder (FSA) then the statue of limitation resets

Question 33

If Adverse Possessor enters when title is FSA

Answer 33

Then after the statute of limitation ends, they will have a FSA, even if in the middle the title changes, only matters of the state of title when the enter

Question 34

Adverse position Disability

Answer 34

If adverse possessor enters during the time the TO has a disability, and the stays for the 10 year statute, TO can bring action 5 years after the disability is cleared

Question 35

Adverse Possession disability ends before 10 years

Answer 35

If adverse possessor enters during the time the TO has a disability, and the disability clears before the 10 year then they dont get the five additional years

Question 36

Adverse Possession disability occurs after entering or if they enter with one disability, TO gains another disability

Answer 36

Doesn't matter if TO is disabled after entering or gains another disability, Only look at the time of entering and the disability at that moment. Once that disability at entering is cleared effects the statute. Not one gained later on or an additional one that wasn't in effect at entering

Question 37

Disability Statute

Answer 37

An action to recover the title or possession of real property shall be brought within 10 years after the cause thereof accrued But if a person entitled to bring such action At the time the cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned such person, after the expiration of 10 years from the time the cause of action occurs, may bring such action within 5 years after such disability is removed

Question 38

Acquisitions of property

Answer 38

Lease/leasehold (including assignments/subleases) Purchase and sale Adverse possession Gifts

Question 39

Gifts

Answer 39

Donor makes a gift to a Donee during donor's life

Question 40

Inter vivos transfer

Answer 40

Transfer during X’s lifetime (e.g., sell or give)

Question 41

Decedent

Answer 41

Person who dies is the decedent

Question 42

Testamentary Disposition

Answer 42

Disposition of property at death

Question 43

Testamentary substitute

Answer 43

Substantially similar so law will try to treat similarly

Question 44

Testator

Answer 44

A person's last will and testament (executor probates the will)

Question 45

Legatee

Answer 45

Named beneficiaries in a will (e.g., ….. to my spouse, A)

Question 46

Interstate

Answer 46

Dies without a will An administration proceeding by administrator

Question 47

Laws of intestacy

Answer 47

Statute that disposes of decedent's property if they die without a will (heirs at law)

Question 48

Distributee

Answer 48

Person who received property under intestacy

Question 49

Heir

Answer 49

A person who inherits property under intestacy laws

Question 50

Valid gift requires

Answer 50

Intention (a question of fact) Delivery (a question of law) No consideration (voluntarily) Acceptance (presumed) Irrevocable (no strings attached)

Question 51

Types of delivery

Answer 51

Actual Actual delivery of item Constructive A key which gives donee the means Symbolic A written instrument (although note that a key can also be symbolic if the state recognizes it)

Question 52

Inter Vivos gift

Answer 52

During lifetime present transfer irrevocable

Question 53

Gift causa mortis

Answer 53

Gift made on deathbed (in contemplation of death revocable at any time prior to death automatically revoked if donor does not die) At CL strictly construed since it is a testamentary disposition in conflict with Statute of Wills Technically, a present transfer subject to a condition subsequent (condition: if donor doesnt die, gift revers to donor)

Question 54

Constructive delivery Common Law

Answer 54

Permitted only if There is plain intent to make gift (back-door way of bringing intent back in), If gift intended to be given is not present, or If gift is present, but it is incapable of manual delivery (size/weight) Other Way to state this: If item is present and capable of being given, then it must actually be given (no constructive delivery permitted) In short if it can be given, it must be

Question 55

Fee Simple Absolute (FSA)

Answer 55

Largest of the estates No inherent ending - infinite At common law, needed to use “and his heirs” Other example of magic words In fee simple absolute (express words show intent) Forever (express words show intent) O to A (no express words; but presumption is FSA)

Question 56

Life Estate

Answer 56

A grant “to A for life” means that A has a Life Estate (a present possessory interest) All life estate’s have an inherent ending - “the life of A” (i.e., when A dies). Therefore, the duration of a life estate is measured by A’s life (compare to 20-year lease) There is always a future interest (reversion or remainder) After A dies, A cannot direct who acquires property (property rights end) Holder of a life estate is referred to as a “life tenant”

Question 57

Life estate transfer

Answer 57

If A has a life estate, A can transfer life estate to X X now has a life estate Pur Autre Vie Even if X holds the life estate, the duration of the life estate is still measured by A’s life. The measuring life doesn't change when A transfers life estate to X

Question 58

" Forever" Common Law for FSA

Answer 58

Doesnt satisfy common law rules would have required "and his hers" The phrase “and his heirs” was required to create FSA

Question 59

"Forever" Modern Rule

Answer 59

Is adequate for the transfer of a FSA Modern Law presumption of FSA (even if magic words not used) The requirement to use “and his heirs” has been abolished in the U.S. Today, a simple conveyance “to A” is sufficient to transfer a fee simple absolute; assuming the grantor owns such an estate

Question 60

Presumption of fee simple

Answer 60

The law now presumes that a deed intends to transfer the largest interest that the grantor owns, which is typically a fee simple absolute

Question 61

Common Practice

Answer 61

While omitting “and his heirs” does not typically affect the validity of scope of a modern deed, its still common practice for many lawyers and deed drafters to include traditional language to avoid any potential confusion or litigation. However, from a legal standpoint, the omission of this phrase should not alter the conveyance of a fee simple absolute in most jurisdiction

Question 62

Restraints on Alienation

Answer 62

Disabling Withhold power to transfer (transfer is void) Forfeiture If you try to transfer interest, forfeit land Promissory Promise not to transfer (similar to LL/T)