Real Property: Adverse Possession

Adverse Possession

• A non-owner can gain full ownership of real property through adverse possession
• Requires possessing the property without the true owner's permission
• Possession must be visible for a statutory period (e.g., 10 years in NY)
• Adverse possessors can bring lawsuits to quiet title
• Adverse possession can be a defense against trespass or ejectment claims

Adverse Possession Elements

• Claimants must prove the following for the required statutory period:
  • Possession was adverse or hostile
  • Possession was actual
  • Possession was open and notorious
  • Possession was exclusive
  • Possession was continuous
  • Possession was under claim of title or color of title

Adversely/Hostilely

• Use/possession must be non-permissive
• Permission from the true owner defeats the claim
• Objective test (majority rule) disregards the adverse possessor's state of mind; lack of permission from the true owner is key
• Subjective tests (NY) require establishing a reasonable belief that the property belonged to them

Actual Possession

• Adverse possessors must physically occupy the property in some manner
• Usually the ordinary use the land is capable of and such as an owner would make of it
• Enclosing land with a fence or wall is recognized acts, building a structure, clearing land, or removing garbage may also be sufficient, and community repute is significant in determining actual possession

Open and Notorious

• Acts must be sufficiently visible and obvious
• Must put a reasonable owner on notice that a non-owner is occupying the property

Exclusivity

• Use should be expected of a true owner
• Adverse claimant's possession cannot be shared with the true owner

Continuity

• Adverse possessors must exercise control in ways owners of that property type would
• 24/7 occupation is not required
• Tacking allows adding successive possession periods, requiring privity (original possessor transferring title to the successor)

Claim of Title or Color of Title

• Claim of title involves claiming ownership without actual title
• Color of title occurs when a written conveyance seems to pass title but fails due to lack of title or a defective conveyance mode

Brown v. Gobble

• Gobbles and Browns owned neighboring properties in West Virginia
• A two-feet-wide tract owned by the Browns was enclosed by the Gobbles' fence
• The Gobbles bought the property in 1985, and the Fletchers (previous owners since 1978) used the tract
• The Browns decided to build a road in 1994, but the Gobbles claimed ownership
• The Browns sought to prevent interference, but the Gobbles counterclaimed adverse possession
• West Virginia's adverse possession statutory period is 10 years
• Mercer County circuit granted in favor of the Browns, and then the Gobbles appealed
• One claiming adverse possession can add previous possessor's years if transfer was in privity of title or claim
• Land possession is adverse/hostile if against the true owner's right
• Land possession is actual if used for residency, enjoyment, or cultivation
• Land possession is open and notorious if the true owner has notice
• Land possession is exclusive if the possessor is the only one using the land as an owner would
• Land possession is continuous if no extended breaks occur, and any possession transfer involves privity

Nome 2000 v. Fagerstrom

• Nome 2000 was the record title holder of Alaskan land
• The court split the land into the north and south ends for litigation
• The Fagerstroms used the northern parcel seasonally for years, housing a camper, planting trees, and building structures
• They used the southern parcel only for recreation on trails and picking trash
• The Fagerstroms allowed others to use the property and Nome 2000 admitted adverse possession of the northern parcel for nine years
• The Fagerstroms acquired title to the property through adverse possession, there is a statutory period of 10 years in Alaska
• Nome 2000 filed for directed verdict, however the lower court denied it for both parcels, Nome 2000 appealed to no avail
• Actions for adverse possession depend on the land's character
• Requirements are met if the land is used as an average owner of similar property would

Real Estate Purchases

• After a buyer finds a place they like and can afford, they can make an offer to buy it
• Offers can be oral or written
• Sellers can accept the offer or make a counteroffer
• Agreeing on a price and terms leads to a sales contract, i.e., the purchase and sale agreement

Executory Period

• Refers to the period between signing and closing
• Buyer obligations depend on:
  • The seller's ability to convey marketable title
  • Buyer's ability to get financing
  • Inspections for structural defects, termites, and environmental hazards( e.g. radon, toxic waste)
• Parties must remove contingencies during this time

Closing

• Inspections are arranged during due diligence
• Buyers attempt to secure mortgage financing
• At closing, the buyer pays the remaining price and the lender pays the agreed amount
• The seller delivers a deed with possible warranties to the buyer
• The deed replaces the purchase and sale agreement under the doctrine of merger

Statute of Frauds

• The statute of frauds is a concept requiring written contracts for certain agreements (e.g., property sales)
• Reasonable certainty in writing must;
  • Identify parties and show contract formation or offer
  • Indicate the contract's nature and subject matter
  • State the essential terms to be performed

Statute of Frauds (Exceptions)

• Part performance allows oral sales contracts if the buyer;
  • Substantially changed position and taken steps to complete the transaction
  • Made either of payment, possession, or improvements
• Estoppel occurs when one party induces a substantial, detrimental change of position in reliance on their actions

Burns v. McCormick

• Mr. Halsey promised his house to plaintiffs if they moved in and cared for him until his death
• The plaintiffs did everything he asked, however, promise was unrecorded
• After his death, they filed declaratory sentence to confirm houses ownership, however the defendants asserted statue of frauds, therefore defending their position
• A contract granting land conveyance must be in writing

Marketable Title

• Purchase and sale agreements require the seller to deliver marketable title for closing
• Marketable title must be free from reasonable doubt, but not from every doubt
• Title based on adverse possession may be marketable if is is clearly established, and there is also a record of validity
• Main defects are encumbrances and chain of title defects
  • Encumbrances are seriously affecting the value of the property to persons other than the grantor
  • Chain of title defects are document irregularies occurred over time
  • Deeds must have valid: parties, description, intent, signature
• Deeds are delivered to gratnee to be effectuated , this usually occurs when a person gives property as a gift
• Constructive delivery: writing a deed and engaging in conduct is is sufficient
• Courts hold that deed delivery with attorney with instrcutions hands deed over constitues of vested remainder with life estate retained by grantor
• Various deed types
  • General warranty deed: covers against defects in title
  • Special warranty deed: Covers defects caused by grantor not previous owners
  • Quietclaim deed: No warranty of ownership, cover what ever the current owner the grantor has

Title convenants

(reference only not testing all!)

• Convenants/warranties , the first 3 are present convenant, and the latter are the future
  • Covenant of Seisin: Owners promise they own whats being transferred
    • eg breaking of a life estate
  • Convenant that the grantor cant transfer or that it has to be possess by another
  • Covers no mortgage/easemenets/licenses and all else acknowledged
  • Grantor covers loss if they dont convey title Covanent of quiet joymennt

Real estate financing

• Loans require contracts Note: The promis e amount or loane with interest payed of mortagte: The series of promeses wuth inaccordance with the note to pay maintane insure give security or foreclose in the event mortgager falls

installment contact

An instalment to finance, where buyers must have a down payment and pay it of the contract in spcecified time and amount

3 Approaches to installment

Mortages and such similar rules, the full protection to buyers or mortages right to decry courts, the long buyers equit, if it had equalty mintains the property the buyer is not a buyer

Sabestan vs floyed

Downpayment and a clause thgats if the paymnets aint meet in 60 days th seller keep the paymetns, sebstaion went dequlft isnt forft his enter

calss 2: forclsoure

A legal for lender to possess their house in the event their is a debt for the mortafr

• moreage back by Bundle them