Law School Resources

Case Briefs, Hypos, Class Notes, Outlines, & Analysis

Law School Resources


What is Property?  a bundle of rights

·         right to enjoy/use (reasonably)

·         right to exclude

·         right to possess (possession = control; includes right to change/modify)

·         right to transfer (sell, give away)

·         right to dispose of (sell, consume)

·         property also comes with obligations


Often there is a conflict of prop. owners and neither can have all his rights. Who gets the rights?

·         Justice systems favors human rights over property rights.

·         Common law says property rights are not absolute.


Types of Property

1) Real Property: land and things attached to the land; immovables

2) Personal Prop.: everything else and intangible items

3) Fixtures: were personal, but so attached, now are real prop.

      -how attached is it?

      -how customized is it?

      -what was the intent at the time it was affixed to the land?


Adverse Possession

Why have AP?

1.        roots/experiences (moral/psychological)

2.        penalty to non-user (economic)

3.        reward to beneficial users (economic)

4.        prevent aging claims

5.        title assurance/way to clear aging titles


Elements of AdPoss: HELUVA

Hostile: 3 standards; at least must show AdPoss is w/o permission of true owner

Exclusive: adverse claimant possesses against everyone else, incl. owner

Lasting: as long as statute requires

Uninterrupted: stay on land, not made to leave by owner

Visible: open and notorious; Doctrine of Encroachments protects unnoticeable

Actual: per statute, what kind of possession is sufficient (use, cultivation)


3 Standards of Hostility

1.  Good Faith Standard: mistake; claimant doesn't know he's on your land, but he intends to keep what he is on

2.  Aggressive Trespass: must intend to take what you do not own (Ellis v Jansing: ok as long as you mean to keep it)

3.  Objective Standard: state of mind is irrelevant


Easement: rt. to use someone else's property for certain purpose

Prescriptive Easement: easement acquired like AdPoss


Texas Statutes of Adverse Possession

Disability: 1) serving in military during war (2) under 18 (3) of unsound mind

      - no tacking of disabilities

      - must have disability when AdPoss begins

Tacking requires privity, a transfer of possession

3 yr: requires color of title (trace back to sovereign of land)

5 yr: use, pays taxes, duly registered deed (not forged)

10 yr: HELUVA reqs.; 160 acres max unless enclosed or by registered deed

25 yr to reclaim your land notwithstanding your disability


The Estate System        .

The Fee Simple Absolute (fsa) / no future interest

"O to A and his heirs" (don't have to say in Tx §5.001)

      Transferable?  yes    (sell, convey)

      Inheritable? yes       (by statute of descent)

      Devisable? yes        (leave in will)


Fee Simple Determinable (fsd) / possibility of reverter

"O to A fsla __" "while, until"  durational words

present interest: A

future interest: reverts to O in fsa immediately  (AdPoss begins running as soon as condition met)

FSD:     Transferable/Inheritable/Devisable? always

Rvtr:      Transferable? probably transferable during O's life - depends on local law

      Inheritable? always

            Devisable? probably, sometimes only to owner of present interest


Fee Simple Subj to a Condition Subsqt (fsscs) / right of re-entry

"…on the condition that/but if/provided that" condt’l lang.

Present interest: A has the rt. to possess; but that can be taken away only by force

future interest: O has the right to take away A's rt to possess, but until he does, even if the condition has occurred, A still has "permission" to possess (note, AdPoss doesn't run)

      --Laches and estoppel protect A if O should know he can re-enter and does not.  Consider:

            --how much time has passed (rzbl)

            --reliance (has A built a house?)

And fsscs is a greater estate than an fsd, so it will be construed as such if ct. can't tell O's intent.

fsscs:              Transferable/Inheritable/Devisable? always

rt. re-entry:        Transferable?  probably (local law)

            Inheritable?        yes