Relations Among Neighbors

Question 1

Adverse Possession

Answer 1

Non-owner can acquire full ownership rights if they “actually possesses” property w/o permission by the formal title holder in a visible manner for the statutory period

Question 2

Why we have the doctrine of adverse possession:

Answer 2

1. Moral: morally wrong to let someone get attached & it gets ripped away
2. Sleeping theory: owner you slept on your rights
3. Earner theory: trespasser earned rights of the property by putting it to use
4. Administrative:
   -Clarity gets property moving in open market
   -If adverse owner gives notice to actual owner that they are making a claim, the owner has a choice to do something (so don’t lose property) or they could do nothing
   -Gives predictability
   -Different to make an evidentiary claim over extended period of time (& uncertainty when buying property if someone who secretly has title from 150 years ago might come back & claim land is theirs)

Question 3

*Elements of Adverse Possession

Answer 3

1. Actual
2. Exclusive
3. Open and notorious
4. Adverse under a claim of right, and
5. Continuous,
6. For the statutory period

Question 4

*Actual

Answer 4

Must physically occupy the property in some manner

Question 5

*Exclusive

Answer 5

Is excluding in the way that a reasonable true owner would exclude

Question 6

*Open and notorious

Answer 6

• Using property in way that is sending a message to real owner that they are using the property as a true owner would
• Constructive knowledge is sufficient: actual owner should have known

Question 7

*Adverse under a claim of right

Answer 7

• If a land owner gives permission, then it is not adverse
  1. The majority presumption = not permissive
  2. Owner has the BOP to show that they gave permission

State of mind of the adverse occupier:
1. Objective (majority view): Courts don’t care what the occupier was thinking when entering onto property
2. Good faith: Requires good faith belief (though mistaken) that they actually owned property
- Presents additional burden of proof on occupier
3. Intentional: Requires they knew they weren’t owner of property
- “Bad faith jurisdiction”

Question 8

*Continuous

Answer 8

Must exercise control over property in ways customarily pursued by owners of that type of property

Tacking: succeeding periods of possession by different persons may be added to achieve the continuous requirement if succession is in privity (Brown v. Gobble)
-Privity: connection is uninterrupted bc transfer btwn owners was voluntary

Question 9

*For the statutory period

Answer 9

All elements met for the duration in the statute of limitations (usually 5-20 years)

Owner can file a trespass claim within the SOL & defeat the AP claim

Question 10

Prescription

Answer 10

If nonowner’s acts on a person’s land is for a specific use (not as an owner), then the person may gain a prescription for the use

Question 11

*Elements of prescription

Answer 11

1. Actual
2. Open and notorious,
3. Adverse under a claim of right, and
4. Continuous,
5. For the statutory period

Question 12

*Nuisance

Answer 12

Nuisance is a substantial and unreasonable interference with the use or enjoyment of land

Question 13

Nuisance law helps the tension between

Answer 13

an owners privilege to use land how they want & a freedom of others to feel secure from harm

Question 14

*Unreasonable interference (balancing test)

Answer 14

1. Utility of D’s conduct;
   - Is their conduct useful?
2. Gravity of harm to P;
   - The standard is against that of a “typical person”
   - Unreasonable sensitivity will barr a nuisance claim
3. Suitability to the area
4. Priority of use;
   - Whoever came 1st has the priority (2nd “came” to the nuisance)
   - BUT not absolute defense bc some things ppl shouldn’t be exposed to even if not 1st & if an absolute defense, 1st person effectively can determine the use of all other surrounding property
5. Cost to P & D of avoiding the harm; and
6. Practicability of abating the nuisance

Question 15

Injunction to prevent nuisance

Answer 15

restraint shouldn’t be more extensive than reasonably required to protect interests of the party in whose favor it is granted & shouldn’t be so broad as to prevent D from exercising his rights (Dobbs v. Wiggins)

Question 16

Anticipatory nuisance

Answer 16

cannot bring a nuisance claim before the challenged use is actually in place (limits nuisance law’s usefulness as prospective planning)

Question 17

Statute of limitations for nuisance claims

Answer 17

1. Temporary nuisance: the claim accrues anew upon each injury
2. Permanent nuisance: SOL for bringing claim begins at time nuisance begins

Question 18

One alternative to nuisance law

Answer 18

zoning laws