Law School Resources
Property
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
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