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Flashcards in Real Property Deck (41):
1

Real Property

Rights in land and things attached to land

2

Adverse Possession

Process whereby someone can sit down on land another legally owns and stay long enough to legally own it

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Adverse Possession Elements

1. Real possession
2. Exclusive possession
3. Open and notorious possession
4. Adverse and hostile possession
5. Continuous possession
6. For the statutory period

4

What kind of interest does prevailing adverse possessor get?

Only whatever interest true owner had

5

Real possession

Claimant must physically use the land the way a reasonable owner would in the circumstances (depends upon the nature and location of the property)

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Exclusive possession

Only being used during this period by claimant, no others

7

Open and notorious possession

- Must be obvious and visible to people, not hidden
- Standard = owner would be made aware of adverse claim if she made reasonable inspection

8

Adverse and hostile possession

Claimant’s state of mind toward property or actual owner

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Minimum requirement for adverse and hostile possession

Does not have owner's consent for possession (if does = fails this element)

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Adverse and hostile possession - OBJECTIVE STANDARD

(1) Connecticut rule
(2) majority rule
(3) state of mind is irrelevant

11

Adverse and hostile possession - BAD FAITH STANDARD

(1) Maine rule
(2) claimant must intend to adversely possess the land = bad faith knowledge that she is not the owner and intent to take title from the owner

12

Adverse and hostile possession - GOOD FAITH STANDARD

(1) Colorado/Oregon/NY rule
(2) claimant believes in good faith that she is the owner of the land

13

Adverse and hostile possession standards

1. Objective
2. Bad faith
3. Good faith

14

Continuous possession

- Used as continuously as real owner would use
- Used in the nature that the property characteristics admit

15

Tacking

Allows adverse possessor of two or more successive periods to add total time possessed together

16

When is tacking allowed?

Only allowed if successive occupants are in privity

17

Privity

Judicial recognition of need for some reasonable connection between successive occupants

18

Effect of LO disability (in adverse possession)

Extends statutory period because owner could not have reasonably inspected/policed land

19

Limitations on disability (adverse possession)

1. Disability must exist on date adverse possession began
2. No tacking
3. Death of property owner ends all disabilities

20

Removal of disability - MAJORITY

- Once disability is removed, owner has statutory time to vindicate her interests
- Notice on [statutory limit] after removal

21

Removal of disability - MINORITY

- Day-for-day tolling
- Once disability is removed, adverse possession period starts over
- Notice on day disability is removed

22

Common disability examples

1. Imprisonment
2. Minority
3. Lack of mental capacity

23

Other disability examples

1. Military services overseas
2. Owner lives outside of state

24

Adverse Possession Policy Justifications

1. Preventing frivolous claims
2. Correcting title defects and surveying errors
3. Encouraging development of land
4. Protecting an investment in personhood in the land

25

Vertical Dimension of Ownership Rule - Traditionally

ad coelom et ad inferos = to the heavens and to the center of the earth

26

Airspace Rule - Modern

- LO owns at least as much space over the ground as he can occupy or use in connection with the land (flexible approach)
- At certain height, air is public highway

27

Subsurface rights - Modern

invasions of property cannot actually interfere with LO’s reasonable and foreseeable use of subsurface

28

Lateral and adjacent support rights

Any digging or activity by neighbor cannot make property collapse because of lack of support

29

Surface water right approaches

1. Riparian system
2. Prior appropriation system
3. Permit system

30

Riparian system

1. Generally adopted by Eastern states
2. Assigns water rights to each LO whose property adjoins a water course
3. Everyone diminishes uses at same level during drought
4. Reasonable use doctrine

31

Reasonable use doctrine (riparian system)

- Riparian owner can take water for reasonable use
- Can create irrigation channels

32

Unity of title rule (riparian system)

MAJORITY
All of land that is
1. held by the same riparian owner and
2. contiguous with a tract along the waterway with same usage rights

33

Source of title rule (riparian system)

MINORITY
1. if a parcel is ever severed from contact with the tract of land touching the waterway, riparian rights are severed and cannot be restored
2. land must touch water

34

Prior appropriation rights (surface water rights)

1. Western states mainly
2. Water rights are allocated to the first person to divert the water for beneficial use
3. Location of land is irrelevant
4. Use stops = right ends
5. Use based on priority during drought

35

Permit system (surface water rights)

Many states require a permit for the division of surface water

36

What is the benefit of the permit system?

Allows government to regulate

37

groundwater rights approaches

1. Reasonable use
2. Correlative rights
3. Permit system
4. Rule of capture

38

reasonable use (groundwater rights)

MAJORITY
Surface LO may use groundwater only for reasonable use on overlying land

39

Correlative rights (groundwater rights)

Surface LO entitled to proportional share of groundwater beneath land

40

Permit system (groundwater rights)

Surface LO obtains water rights by securing a state permit

41

Rule of capture (groundwater rights)

TX ONLY
Surface LO can pump without limit, absent malice or willful waste