1L AP: Property Basics

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1L AP: Property Basics
2011-08-30 18:21:00
1L AP Property Basics

Property 101 Adverse Possession Basics-- Elements, Rules
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  1. Define AP
    • method of acquiring title to property by
    • possession for a statutory period under certain conditions
  2. Elements of AP


    Open & Notorious

    Continuous & Uninterrupted



    NCGS: Statutory Element
  3. Hostility Element- Define, Rules
    • Act of dominion and use as if you are the true
    • owner; possession under a “claim of right”

    • ii) Permission/Consent
    • by TO kills hostility… unless the welcomed invite is extended in hostility

    (1) Majority Rule—Objective Standard—State of Mind is Irrelevant/Look at actions—North Carolina

    actions are critical; Once there is an entry against the true owner, she has a cause of action.

    (2) Minority Rule—Subjective Standard—Look to intent of AP

    (a) Good-Faith Jurisdiction/Standard—“I thought I owned it.” mistaken belief that it was his/her own

    • (b) Larcenous Intent Jurisdiction/Standard—“I
    • thought I did not own it and intended to take it.”
    • knew the property belongs to someone else and claims it anyways
  4. Open and Notorious Define, Rules
    • The adverse possessor has visible and
    • apparent possession of the land evident
    • to the public.

    (1) AP does not need to give actual notice to the TO,===constructive notice

    ii) Encroachments- something built partially on the land of another…

    • For a minor encroachment,
    • the TO must have actual notice before statute of limitations start.
  5. Continuous and Uninterrupted
    • Possessing the land that is consistent with the character and nature of the land, using the
    • property as the true owner would under the circumstances
  6. Exclusive
    • No one can
    • interfere with the adverse possessor’s dominion or control of the property,
    • especially the true owner.

    • (1) Does not mean sole exclusivity—just reasonable
    • use.
  7. Actual Possession
    Real, physical possession of the property

    • (1) Must actually be there, either personal or object
    • Building on or improving the property helps est.
    • this element
  8. Statutory Element
    Against the state:

    • (1) 30 years Þ claim of
    • right

    (2) 21 years Þcolor of title

    Against the Individual (company=individual)

    • (1) 20 yearsÞ claim of
    • right

    • (2) 7 yearsÞ color of
    • title

    • Think also:
    • -Tacking
    • -LE and Remainders
    • -Disabilities
  9. Tacking. Define, what are the elements and general rules
    • Successive adverse possessors add together period
    • of possession to satisfy the statute of limitations. Possession must be continuous
    • and in privity.

    • (2) GR: Time runs against the true owner from the time when AP began, and so long as AP continues unbroken, it makes no difference who
    • continues it.

    • (a)
    • Elements:

    (i) Continuous

    • (ii) Privity— Relationship between two parties having a legally recognized interest in the property. (Subsequent possessor
    • voluntary takes by descent, by devise, or by deed purporting to convey title.)
  10. Privity define... who has it?
    (ii) Privity— Relationship between two parties having a legally recognized interest in the property. (Subsequent possessorvoluntary takes by descent, by devise, or by deed purporting to convey title.)

    (a) Ways toestablish privity:

    (i) Grantor/Grantee (Seller/Buyer)

    (ii) Devisor/Devisee (Testate decedent/ beneficiary)

    (iii) Ancestor/Heir (Intestate decedent/ heir)… determined by intestate succession act

    • (iv) Any other kind of "agreement" (Kunto=reasonable connection between successive
    • occupants of real property)
  11. When is Tacking NOT permitted?
    • (i) Force: Subsequent
    • possessor forced or ousts a prior possessor OR

    • 1. Depends on jurisdiction if AP must restart SOL
    • when kicked off and returns to land

    • (ii) Abandoned: Where one prior adverse possessor
    • abandons; leaves with intent to relinquish claim
  12. What is COT?
    • A written instrument purported
    • to convey, but fails to convey title
  13. What are the advantages to COT?
    COT Not required in most American Jurisdictions but has advantages:

    i) Shorter Statute of Limitations—

    ii) Opportunity to argue constructive possession
  14. Define CP. What are the elements?
    • gain title for entire land described on colorable instrument, even
    • if not in actual possession of, if in actual possession of some.

    ii) Elements/Requirements

    (1) Color of Title

    (2) Single Parcel; Single Owner (land)

    • (3) No actual possession by another (especially
    • TO)

    (4) Adverse Possessor has actual possession of some property
  15. What's the important exception to CP?
    Constructive Possession cannot trump actual possession (by a true owner or other adverse possessor).

    • (1) When the land described in the colorable
    • instrument is occupied in part by the TO, the adverse possession is confined to the area actually possessed.

    • (2) Land already in the constructive possession of
    • another possessor under color of title cannot be included in constructive
    • possession of another.
  16. What is the rule for AP against the State?

    Against the Gov't?

    Gov't against Individual?
    A) State—

    • i) Regular
    • adverse possession =30 years

    • ii) Color of
    • title =21 years

    • B) No adverse
    • possession against the federal government

    • C) Adverse
    • possession cannot be brought against the state for any public lands, such as
    • parks, streams, etc…

    • D) Private party
    • can’t get gov’t property by AP but the gov’t can get property of a private
    • individual via AP
  17. What's the run for tacking in terms of time periods to be met by subsequent possessors?
    Must use original time period of the prior possessor.

    • IE: AP for 5 years. COT
    • can’t take and only have 2 more years… need to do full 7 years.
  18. What's the general rule for AP and subsequent transfers of land?
    • Once AP has begun... the SOL begins to run
    • against the true owner and subsequent transfers of the land by the TO do not
    • interrupt the AP.
  19. What's the rule for AP against a remainder?
    • AP can only take what the TO has right to… but in a LE/Remainder situation, both parties
    • have rights to land. Until AP is established against a remainder, AP is not
    • official b/c doesn’t meet SOL against Remainder.

    • (i) LE and
    • Remainder is a separate interest in the same property, entitling first the life
    • estate to the possession and then after his death the remainder.

    • (ii) The remainder has an interest in the property but
    • cannot come into possession until the life estate interest terminates (LE
    • dies). Immediately then, the interest transfers to the Remainder and the
    • Remainder can have possession. The AP must meet the SOL against the remainder
    • starting that date. Thus SOL restarts against the Remainder.
  20. What's the POLICY for AP and remainder
    • Protects the TO (Remainder) who was unable to
    • enforce interest until LE died.
  21. Does disabilities apply to COT or AP?
    Both; COT and AP
  22. NC Disabilities include:
    (a) Minor

    (b) Insanity

    • (c) Incompetence—person
    • adjudicated incompetent

    Disabilities by other jurisdictions may include: prison and military—but not NC
  23. What's the rule for disability and tacking?
    • No tacking of disabilities: only a disability of
    • the true owner existing at the time
    • the cause of action arose is considered. Disabilities of successors or subsequent
    • additional disability of the true owner have no effect on the statute
  24. General rule for disability and time action accrues:
    Disability must be present when action accrues.

    • (a) If disability
    • comes upon TO after the adverse
    • possessor has entered his land.
    • The regular statute of limitations applies
  25. 2 approaches for disabilities:

    What is NC's?
    • (a) Additional
    • Period of Time/Grace Period—once
    • the disability is removed the TO has an additional period of time to bring a
    • cause of action against the adverse possessor if the statute has expired or the
    • time until the statute expires if shorter than the additional time period. The time the owner has to bring an
    • action will be as long as the statute or longer, but it will never be
    • shorter. This protects the TO.

    (i) North Carolina= 3 years of grace period

    (b) Tolling—SOL ceases during disability and starts after disability is removed
  26. Types of disabilities:

    Which do NC recognize?
    (a) Existing—exist when time of action accures

    • (b) Coexisting Disability (2 at same time=last to be removed)—TO has two
    • disabilities when the action accrues.
    • The additional period of time does not start running until the 2nd disability is removed.

    • (c) Supervening Disability (1+1=last removed)—TO
    • has a disability when the action accrues.
    • Before the first disability is removed, TO develops another
    • disability. The additional period
    • of time does not start until the last
    • disability is removed.

    • (d) Intervening Disability (gap btwn disabilities)—TO has a disability when
    • the action accrues. The disability
    • is removed. However, before TO can
    • bring a cause of action, another disability comes on A. The original period of time
    • stands. The additional period of
    • time does not restart.

    • *NC does NOT recognize intervening disabilities for additional period
    • of time