CH 16 FBE 427

What is the adverse possession/ California requirement?

1. Adverse to landowner 2. Actual Possession 3. Exclusive Possession 4. Open, Visible, Notorious 5. Statutory Time Period 6. MUST PAY PROPERTY TAXES

Requirements that enable adverse possession are (5)

1. Adverse to that of the landowner 2. Actual possession 3. Exclusive possession 4. Open, Visible, and notorious 5. Continuous for the statutory period

The Causa Mortis Gift is irrevocable if?

1. Donor makes a gift in anticipation of an impending death from an illness, disease or peril 2. The gift was delivered, and 3. Donor died from the sickness or peril

Two ways to STOP adverse possession?

1. File a lawsuit for trespass 2. Grant permission (destroys AP)

Two types of Gifts

1. Inter Vivos Gift 2. Causa Mortis Gift

Is there a taking of private property? (Eminent Domain)

1. The landowner is deprived of any use of the property 2. Permanent physical invasion 3. Regulatory takings must deny the landlord of all economic uses of the property DIRT (Deprived, invasion, regulatory taking)

What is example of a regulatory taking?

A developer acquired beachfront lots for approximately $1 million. Before he started construction on them, a new state law barred construction on them for public safety reasons. The lots were rendered valueless. The Supreme Court held that a regulatory taking had occurred that deprived the landowner of all economically viable uses of the property.

One requirement that enables Adverse Possession is "Exclusive Possession" What is an example of Exclusive Possession?

An adverse possessor who desires to obtain title to an abandoned residential property would not have exclusive possession if the adverse possessor allowed other individuals to reside in different rooms on the property.

John had his attorney prepare deeds to transfer property John owned to his niece. He placed the executed deeds in a safe-deposit box and gave his niece the only key. Is this actual or constructive delivery of the gift?

Constructive

One requirement that enables Adverse Possession is "Open Visible and Notorious" What is an example of Open Visible and Notorious?

Enclosing property with a fence or building a dwelling on property is open and notorious and neighbors seeing it.

Inter Vivos

Gifts made while the donor is alive

One requirement that enables Adverse Possession is "Actual Possession" What is an example of Actual Possession?

If the property is residential, then the adverse possessor must utilize the property as a residential property. The adverse possessor must reside on the property and use the property as would a residential owner.

What is an example of tacking?

In a state that had a 20-year statutory time period for adverse possession, if Juan adversely possessed Gabriella's property for 19 years and then died, but Juan's son continues to possess the property following Juan's death, the son's possession may be added to the time Juan possessed the property to reach the applicable 20-year statutory period.

Kyle has a rare coin that he wants to ensure his brother receives upon Kyle's death. With his brother and sister present, he tells them his brother is to receive the rare coin upon Kyle's death. He places the coin in his desk drawer so that it could be accessible upon his passing. When Kyle dies, his sister asserts there was no delivery of the coin and no gift. Is she entitled to a share of its value?

Kyle's sister will receive a share of the rare coin, as this does not constitute a gift. In this case, there is no actual delivery because Kyle does not surrender possession or control of the gift to his brother. Additionally, there was no constructive delivery because Kyle did not give his brother exclusive means of obtaining possession or control of the coins.

One requirement that enables Adverse Possession is "Continuous for the Statutory Period" What is an example of Continuous for the Statutory Period?

Maggie is occupying an abandoned residential property under a claim of adverse possession. She leaves for work each day and returns home. She typically takes a two-week vacation each year. Even though Maggie leaves daily during the workweek and takes vacations, she has still met the continuous element for adverse possession because she has not been interrupted by a physical ouster or court ordered eviction.

Kelsey promises to give her old sofa to George. On the phone, George accepts Kelsey's offer to the gift. Kelsey changes her mind and calls leo. Kelsey promises to give the sofa to leo on the phone and he accepts the offer of the gift. Who does the sofa currently belong too?

No one! There was NO delivery

Lance owns a commercial property in the city of Yorba. Lance has plans to develop his property and build a five-story apartment complex. The city of Yorba enacts an ordinance prohibiting construction of buildings over three stories in the city. Lance's property is now worth many millions of dollars less than the purchase price. Is he entitled to sue for a taking?

No, a regulatory taking occurs that denies the owner all economic uses of the property. In this case, although a regulation has resulted in the decreased value of Lance's property, it does not amount to a taking to justify eminent domain.

Caesar owns a home next to Patricia's unimproved residential lot. Each year, unbeknownst to Patricia, Caesar uses Patricia's lot for holiday parties and special events. Caesar has done this continuously for 20 years. After each party, Caesar carefully cleans up the lot so that when and if Patricia drops by, she cannot tell that her land has been used by someone else. Caesar never asks Patricia for permission to use the lot, and he only uses it for parties and special events. Under these facts, has Caesar met the requirements for adverse possession?

No, because the use was not open, visible, and notorious and may not have been continuous. Intermittent trespassing

Is there a tacking/ privity when there is an ouster?

No; no tacking of time occurs

Eminent Domain

Power of a government to take private property for public use with compensation. taking PRIVATE property for PUBLIC use with COMPENSATION

Tacking under "Continuous for the Statutory Period"

Rule allowing an adverse possessor who has not been in possession for the statutory period to add the periods of adverse use by prior adverse possessors so long as there is PRIVITY

What is an example of a physical invasion?

Steel and cable boxes on private property

The Jamesons own a house in a blighted area. The city has plans to develop the blighted area and wants to use eminent domain to take the property. It will then transfer the property to private commercial developers who will construct a commercial and residential district, thereby increasing the city's sales tax and property tax revenues. The Jamesons object that the transaction is not for a public purpose. Who is correct?

The city is correct. The term "public use" has an expansive definition. In this case, under the Kelo decision, although the city is gifting the property to a private party, the public may still benefit by the increased property and sales tax resulting from the developer's improvement to the property.

John is scheduled for major surgery. John tells his brother, Joseph, that he wishes Joseph to have John's art collection in the event John dies as a result of the surgery. Joseph agrees to the gift. John survives the surgery, under causa mortis, what happens to the gift?

The gift to his brother is automatically revoked.

If a public regulation lowers the value of private property, then...

The government does not have a duty under eminent domain to pay just compensation for the difference. Because it is a regulatory taking

Melanie is a tenant in common with Cynthia. Melanie has a 90 percent interest in the property, and Cynthia has the remaining 10 percent interest. If Melanie ousts Cynthia by refusing to allow her any use of the property, Melanie can establish the adverse element for adverse possession. T/F

True

Once the adverse possessor receives title to real property, the former legal owner has no rights to the property (T/F)

True

What is a GIFT?

Voluntary transfer of property from a donor to a donee, without any consideration

When does an inter vivos gift become irrevocable?

When 3 elements are met 1. Intent by donor 2. Delivery to donee 3. Acceptance by donee IDA

A woman plants rosebushes on what she believes to be her property. In fact, they are planted two feet into her neighbor's property. is this adverse possession?

Yes

Ryan and Elliot are brothers who own a beachfront property as tenants in common. Ryan owns 75 percent, and Elliot owns 25 percent. Several years into their ownership of the property, Ryan decides he is tired of giving Elliot equal possession when he owns less, so he prohibits Elliot from using the beachfront property. Ryan wants to buy Elliot's interest, but Elliot refuses to sell. Will Ryan be able to take the property by adverse possession?

Yes, Ryan's refusal to allow Elliot to use the beachfront property would be adverse to Elliot's interest in the property. The adverse element is met, and as long as Ryan meets the other adverse possession requirements, he can obtain title from a tenant in common through adverse possession.

Omar inherits a vacation home distant from his residence. He takes no action to inspect the property at any time. Without his knowledge, the Forche family has started using the property as their own home. The neighbors believe that the Forches purchased the property. Assuming the Forches meet the state's statutory period of time for occupation, can they take title to the property by adverse possession?

Yes, the Forches' possession is adverse to Omar's legal title; they have actual possession of the property as they are living in the vacation home. The Forches do not share the property with anyone else. By living in the home, their possession is visible and obvious and they have met the statutory requirement. As long as they continue to use the property as their own home for the statutory period, the Forches can successfully take title by adverse possession.

The Muchados have a family farm with ten acres of land that has been in their family for generations. Due to suburban growth, their farmland is now being encroached on by neighboring communities. The county seeks to take a portion of the Muchados' farmland under eminent domain and use the land for a public school. The Muchados have been offered $250,000 for a portion of the land for use as a school site. That is a fair price. The Muchados don't want to sell for any price because of the sentimental value of the property of this multigenerational asset. Can they be forced to sell? Will the price include payment for the emotional loss suffered by the family members?

Yes, the Muchados can be forced to sell their property under eminent domain. The payment of just compensation does not have to include the emotional loss suffered. The fair market value is determined by market forces and not sentimental values.

If the government takes 1 inch of your property for a highway expansion, is that a taking?

Yes; you are deprived 1 inch

Adverse Possession

a person who does not have title to the property but possesses it for a statutory period of time and meets other requirements can cause a court to convey title to the adverse possessor.

Tim wants to gift his home to his daughter, Tara, when he dies. Tim prepares a deed, puts it in his safe deposit box, gives Tara the only key to the box, and tells her to record the deed upon his death. This gift is

effective because there was constructive delivery of the deed and property prior to death by the use of the safe deposit box and only key.

Bob owns riverfront property in a blighted section of the city. The city condemns his property along with other residential properties in the area with the intent to allow a private developer to build a retail and residential development. Bob and his neighbors assert that this type of taking is not for a public purpose because a private developer will benefit. They also protest that the taking was not for fair compensation, although they had a hearing on value and lost. In a suit against the city, Bob and his neighbors will likely

lose because a city's actions may benefit a developer in the process of urban renewal.

Causa Mortis Gift

occur when a donor makes a gift in contemplation of their impending death

Privity

occurs when possession of the subject land is passed from one person to another by deed, will