PROPERTY RIGHT BY SUBSEQUENT POSSESSION

Property rights are often relative, good against some under certain circumstances, but not against others
 Possession is very powerful; it can create ownership but doesn’t always equal ownership

FINDERS LAW
C X is un/likely to claim X possession of X item.
R Finders law: The finder has rights superior to everyone but the true owner. If the true owner loses the item, it does not make the true owner
lose their rights.
E  Lost when accidently misplaced  Lost [Better = Finder; Best = Original Owner]
 Mislaid when the owner intentionally left it somewhere then forgets left there  Mislaid [Better = Premise Owner; Best = Original
 Abandoned when owner forms intent to give up all rights to item. Owner]
 Treasure trove – buried or concealed in “antiquity” or at least so as long as to  Abandoned [Best = Finder]
indicate that the owner is probably dead or unknown.  Treasure Trove [Best = Finder]
A In this case ___. It can be inferred that ____. It can be illustrated that ____.
Application Considerations:
o Where was it found? Lose, tight, etc.; What is custom/common experience concerning the item; time, position, wrapping
 Trespassing rule: in a dispute between the landowner and the finder, the landowner will win if the finder was trespassing at the time she
found the object
 Embedded rule: if personal property is embedded in the soil, the item will be awarded to the landowner
C X is un/likely to claim X possession of X item.

GIFTS LAW
C X is un/likely to claim X possession of X item.
R Gifts law – immediate transfer of ownership of property giving gratuitously without expecting anything in return. [irrevocable present]
E  Inter vivos gifts – given while alive (owner is Inter vivos gifts
alive when gift is given)  A gift to take place in the future is ineffective
 Causa mortis gifts – gifts after death  They are: immediate, voluntary, gratuitous, irrevocable, transfer of ownership, made
 Testamentary gifts – a will during the lifetime of the owner
 Elements: Capacity of donor to give; Intent of donor to make a present &
irrevocable transfer of ownership; Completed delivery to done; Acceptance by
the done
A In this case ___. It can be inferred that ____. It can be illustrated that___.
Application Considerations:
 Bailment – temporary transfer of property from bailor to bailee for a particular purpose, without transferring ownership
 Delivery rules: Actual (preferred) (physical transfer); Symbolic (giving an item that represents the gift or associating the donee’s name
with the item); Constructive (giving access to the place where the subject matter of the gift is located; handing over an object that will
give access)
 Delivery rules cont: Must proceed to the point of no return; Must be as perfect as the nature of the item and the circumstances
surrounding the parties will permit; Must transfer dominion and control from the donor to the donee (gift recipient)
C X is un/likely to claim X possession of X item.

PROPERTY RIGHT BY ADVERSE POSSESSION OF REAL PROPERTY

 Cause of action – Adverse possession can be raised as: (1) A defense to trespass; or (2) A defense to eject or;
  An action to quiet title (Action intended to clarify ownership of a given property)
ADVERSE POSSESSION
C X is un/likely to claim X possession of X item.
R Adverse Possession –allows a non-owner who actually possesses land without the permission of the true owner and who meets certain
elements to acquire ownership of that land.
E 1) Actual - AP must physically occupy (control) the land in the manner that an owner would
2) Open and notorious - The possessory acts of the AP must be visible & obvious to put a reasonable owner on notice that her property
is being occupied by a non-owner.
3) Exclusive - AP must possess the property in a manner that is not shared with the true owner nor with others. [must excluded record
owner]
4) Continuous – AP must exercise dominion and control over the land for uninterrupted period of time. [does not mean AP needs to be
on property 24/7]
5) Adverse or hostile – states have adopted different tasks for identifying if this has been met
A In this case ___. It can be inferred that ____. It can be illustrated that___.
Application Considerations:
 Actual - above
 Open and notorious - The true owner need not actually observe the acts; the true owner is charged with seeing what a reasonable
inspection would have disclosed.
o The reputation of ownership in the community
 Exclusive – AP may include others and allow them to enter the property as a true owner might do.
 Continuous –
o Tacking – allows successive periods of adverse possession to be added together
o Succeeding periods of adverse possession by different trespassers may be added together if those persons are in privity
o Privity is provided when the earlier possessor gives the next possessor (the successor) a title documenting purporting to transfer title to
that successor or if the successor is an heir of the earlier possessor:
 If the successor dispossesses the period adverse possessor, the tacking doctrine does not apply. The successor and the
earlier possessor must have privity
 No relationship in the land = no privity = no tacking
o The date that the claim was filed begins the statute of limitation (meaning time stops and you add everything up until this time)
 Adverse or hostile – The AP must show that their possession is against the interest and right of the true owner; is inconsistent with the
title of the true owner for the statutory period.
o Owners state of mind**
 The AP must show that het use was nonpermissive
 If the true owner permitted the use, the adverse possession claim is defeated
 There is a presumption that the possession of another’s real property is non permissive
 The owners state of mind: (claim of right is 1 of the 3) ONLY FOR ADVERSE/HOSTILE
 Objective test – how the adverse treats the land; or;
 Subjective intentional dispossession test – bad faith (adverse possessor knows she is occupying land without permission); or
 Subjective good faith/mistaken belief test – where adverse possessor thinks they own the land
C X is un/likely to claim X possession of X item.
 Color of title – an individual acquires color of title when a written conveyance appears to pass title (from a
title/record owner) but does not do so. The claimant still must meet all of the elements to prove adverse
possession
o If deed is defective then the transfer of the title deed is not valid
o Constructive possession – actual possession of any portion of that land constitutes adverse possession of
all the land described in the document providing color of title. (even land you did not use)
 The defective title may be void:
o Because the person who conveys it does not actually own the land the document purports to convey; or
o Because the document lacks a signature; or
o Because the document contains a mistaken description of the land it purports to convey; or
o Because the document was procured through a faulty procedure.
o Add definition of constructive possession (pg. 324)
 Claim of right – a possessor’s intention to appropriate and use the land as his own to the exclusion of all others
o Only entitled to the land you adversely wanted to claim/filed to claim
 o That intention need not be expressed but may be implied by a claimant’s conduct. Actual occupation, use, and
improvement of the property by the claimant, as if he were in fact the owner, is conduct that can prove a
claim of right.” This effectively collapses the claim of right test into the objective test, automatically
satisfying the claim of right if actual possession has been shown.
 Standard of proof for adverse possession:
o Is their clear and convincing evidence, preponderance of the evidence, or beyond a reasonable doubt
 Character of the Land Rule
o The quality and quantity of acts required for adverse possession depend on the character; including the nature
and location of the land in question. Thus the question: Has the adverse possessor used/possessed/exercised
dominion and control over the land as an average owner of that kind of real property would use it

THE RIGHT TO EXCLUDE V. THE RIGHT OF ACCESS

RIGHT TO EXCLUDE
C X is un/likely have a right to exclude B.
R right to exclude: means to possess and occupy, use, alienate/transfer, devise or bequeath, dispose of/destroy, exclude and enjoy the profits
therefrom. The right to exclude is not absolute. Non-owners may have a right of access to the property. There are 3 types of privileged entry:
E Consent One who enters property with the permission of the owner or possessor is called a licensee and has an interest called a license. If
the owner revokes the license, the non-owner must leave the land within a reasonable time; failure to do so will constitute a trespass.
Necessity: is a defense to a trespass claim. if a trespasser damages the property, the law imposes on the trespasser a duty to compensate the
owner for the damage but does not require the trespasser to pay for the mere privilege of access
Public Policy:
 Common carrier/innkeeper rule: innkeepers and common carriers have a duty to provide reasonable access; they can only exclude on
reasonable grounds. OR
 Amusement place rule: owners of places of amusement have an absolute right to exclude, thus to arbitrarily exclude or eject any
person consistent with state and federal civil rights laws.
 Civil Rights Act of 1964, Title II – 42 U.S.C. §2000a(b) Establishments that are a place of public accommodation within this title if its
operations affect commerce, or if discrimination or segregation by it is supported by State action include hotel, motel, restaurants,
cafeteria, gasoline station; theater, concert hall, sports arena,; and any establishment which is physically located within the premises of
any establishment otherwise covered by this subsection.
A In this case ___. It can be inferred that ____. It can be illustrated that ____.
Application Considerations:
 Trespass is an unprivileged intentional intrusion on property possessed by another, an unauthorized entry into another’s land.
o Intent is met if the wrongdoer engaged in a voluntary act. Mistaken entry on the land of another does not excuse the trespass.
o The intrusion occurs the moment the non-owner enters the property.
The harm is the infringement on the right of possession
o Necessity: To defend against trespass on necessity, the defendant must present evidence of (see page 11):
o A clear and imminent danger;
o A reasonable expectation that the action will effectively abate the danger;
o No legal alternative which will be effective in abating the danger; and
o The legislature has not precluded the defense.
If D satisfies these foundational conditions, the burden is on the state to prove beyond a reasonable doubt the absence of necessity.
o What are the justifications for the common carrier/innkeeper rule?
 Common carriers/innkeepers were monopolies.
 Common carriers/innkeepers provided necessities.
 Common carriers/innkeepers hold themselves out as being ready to serve the public and the public relies on that representation.
o The plaintiff must allege that the defendant:
1. Committed discrimination
2. On the grounds of race, color, religion, or national origin
3. In access to a “place of public accommodation.”
To constitute a “place of public accommodation,” a business must
a. Fit into the list of facilities named or implied;
b. Must “serve the public” and not constitute a “private establishment . . . not in fact open to the public”
c. Must either “affect commerce” or be “supported by state action.”
C X is un/likely have a right to exclude B item.
 CONCURRENT OWNERSHIP – JOINT TENANTS
X is un/likely have a right to exclude B.
x: x
xx
In this case ___. It can be inferred that ____. It can be illustrated that ____.
Application Considerations:
d. x
X is un/likely have a right to exclude B item.

CONCURRENT OWNERSHIP –TENANTS IN COMMON

X is un/likely have a right to exclude B.
x: x
xx
In this case ___. It can be inferred that ____. It can be illustrated that ____.
Application Considerations:
e. x
X is un/likely have a right to exclude B item.

CONCURRENT OWNERSHIP –TENANCY BY THE ENTIRETY

X is un/likely have a right to exclude B.
x: x
xx
In this case ___. It can be inferred that ____. It can be illustrated that ____.
Application Considerations:
f. x
X is un/likely have a right to exclude B item.

A. Partition B. Ouster
 Partition is the division of the property held by the co-  Ouster is an explicit act by which one co-owner excludes the other
tenants into the respective fractional shares. co-owners from the property
 A co-tenant may file an action for partition to terminate  The tenant out of possession requests to be let in possession; the
the co-tenancy and tenant in possession then excludes the other by an affirmative act.
o Divide the property physically or Ouster Rent
o Divide the proceeds from the sale of the property.  The tenant in possession must pay rent to the ousted tenant
 Partition may be:  The amount owed is the fractional share of the rental value owned
o Voluntary or involuntary(judicial) by the co-owners out of possession
o In kind or by sale 1. Actual Ouster
 In kind means a physical division of the o Co-tenant out of possession: demand for shared possession
property o Co-tenant in possession: notice of refusal to share
 Sell it and get the proceeds possession
o Partition in kind is the preferred method of partition. 2. Constructive Ouster
Why? o Constructive ouster can occur when the character of the
 When you go to the court it is preferred property makes joint occupancy impossible or
because it gives the opportunity to split it up. impracticable
o Impractically may also result when the relationship
 We don’t want to force people to sell the between the co-tenants is strained.
property if they don’t want to sell. o If, however, hostility flows from the co-tenant out of
 Courts may order partition by sale if: possession, ordinarily there is no constructive ouster.
o Division of the parcel is not practicable or 3. Ouster and Adverse Possession:
o Partition by kind will create “great prejudice”, o Without ouster, cotenants in possession cannot claim
“substantial injury”, or be “inequitable” to the adverse possession against other cotenants. Because each
co-tenants. See note 1 pg. 712 tenant already has the right to possess the property,
 New rule: factors to consider when deciding whether to possession by one cotenant is not adverse in the absence of
partition in kind or by sale: the elements of antagonism and notice that the possession
o Economic value of property/financial [finish is hostile. Pg. 691
from slide deck]
o Sentimental/ emotional attachment C.

D.