Adverse Possession.... (?)

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couscous2389
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Adverse Possession.... (?)

Postby couscous2389 » Thu Oct 06, 2011 11:03 pm

I have a property question regarding adverse possession... If you can help please message me, it would be super appreciated!

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ph14
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Re: Adverse Possession.... (?)

Postby ph14 » Thu Oct 06, 2011 11:04 pm

couscous2389 wrote:I have a property question regarding adverse possession... If you can help please message me, it would be super appreciated!


What's the question?

Renzo
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Re: Adverse Possession.... (?)

Postby Renzo » Thu Oct 06, 2011 11:28 pm

ph14 wrote:
couscous2389 wrote:I have a property question regarding adverse possession... If you can help please message me, it would be super appreciated!


What's the question?


No idea. But the answer is probably open, obvious, and continuous.

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Kabuo
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Re: Adverse Possession.... (?)

Postby Kabuo » Thu Oct 06, 2011 11:34 pm

Maybe even notorious.

couscous2389
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Re: Adverse Possession.... (?)

Postby couscous2389 » Thu Oct 06, 2011 11:42 pm

Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?

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Kabuo
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Re: Adverse Possession.... (?)

Postby Kabuo » Thu Oct 06, 2011 11:48 pm

I'm a 1L, and property is probably the class I feel least confident about. But, doesn't adverse possession vary substantially between jurisdictions?

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Lasers
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Re: Adverse Possession.... (?)

Postby Lasers » Thu Oct 06, 2011 11:52 pm

couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?

i believe notice is open, notorious and hostile use of the land/property as a normal/reasonable land owner would. you don't send the owner notice, you simply openly use the land without permission as a normal land owner in that area would. it is up to the owner to notice your use on his land before the statutory period is up.

couscous2389
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Re: Adverse Possession.... (?)

Postby couscous2389 » Fri Oct 07, 2011 12:03 am

Lasers wrote:
couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?

i believe notice is open, notorious and hostile use of the land/property as a normal/reasonable land owner would. you don't send the owner notice, you simply openly use the land without permission as a normal land owner in that area would. it is up to the owner to notice your use on his land before the statutory period is up.


Right, I know that those types of constructive notice satisfy the requirement but would sending an email count as actual notice? It does vary between jurisdictions. I'm referring to a specific case where the rule states that if the owner does have actual notice up until the statute expires, that satisfies the open and notorious requirement. I'm wondering if actual notice has to consist in a physical manifestation of one's use of the property or whether sending an email would satisfy it even if the email goes to a spam folder.

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ph14
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Re: Adverse Possession.... (?)

Postby ph14 » Fri Oct 07, 2011 12:06 am

couscous2389 wrote:
Lasers wrote:
couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?

i believe notice is open, notorious and hostile use of the land/property as a normal/reasonable land owner would. you don't send the owner notice, you simply openly use the land without permission as a normal land owner in that area would. it is up to the owner to notice your use on his land before the statutory period is up.


Right, I know that those types of constructive notice satisfy the requirement but would sending an email count as actual notice? It does vary between jurisdictions. I'm referring to a specific case where the rule states that if the owner does have actual notice up until the statute expires, that satisfies the open and notorious requirement. I'm wondering if actual notice has to consist in a physical manifestation of one's use of the property or whether sending an email would satisfy it even if the email goes to a spam folder.


I believe "actual" notice means that they had actual knowledge. So sending an email that only goes to spam and they never saw it wouldn't count as actual notice.

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Re: Adverse Possession.... (?)

Postby Renzo » Fri Oct 07, 2011 12:09 am

couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?


If the question is what constitutes "actual notice," then actual notice means actual notice--as in the original owner actually knows the adverse possessor is there. So, if you send an email that the original owner never reads, there's no "actual" notice, since the original owner is unaware. However, there might be constructive notice, if any reasonable landowner would check their spam box from time to time to make sure no important notices went unread.

Physical manifestation of use is separate from the question of "actual" notice; it woud only be actual notice if the landowner actually saw the manifestation and was thus put on notice. But, a physical manifestation might be enough to establish constructive notice if any reasonably diligent landowner would have noticed your physical manifestation.

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Lasers
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Re: Adverse Possession.... (?)

Postby Lasers » Fri Oct 07, 2011 12:13 am

Renzo wrote:
couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?


If the question is what constitutes "actual notice," then actual notice means actual notice--as in the original owner actually knows the adverse possessor is there. So, if you send an email that the original owner never reads, there's no "actual" notice, since the original owner is unaware. However, there might be constructive notice, if any reasonable landowner would check their spam box from time to time to make sure no important notices went unread.

this.

if e-mail was un-read, then no actual notice.

couscous2389
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Re: Adverse Possession.... (?)

Postby couscous2389 » Fri Oct 07, 2011 12:29 am

Lasers wrote:
Renzo wrote:
couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?


If the question is what constitutes "actual notice," then actual notice means actual notice--as in the original owner actually knows the adverse possessor is there. So, if you send an email that the original owner never reads, there's no "actual" notice, since the original owner is unaware. However, there might be constructive notice, if any reasonable landowner would check their spam box from time to time to make sure no important notices went unread.

this.

if e-mail was un-read, then no actual notice.


Thank you for the input! I guess the only clarification I'm still looking for is whether in notice the two elements, as someone indicated, are: 1) hostility, giving notice to the world at large and; 2) open and notorious; giving notice to the original owner? Does the open and notorious requirement not entail actual use and a physical demonstration of utilizing the land, while the hostility requirement does make this necessary?

Renzo
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Re: Adverse Possession.... (?)

Postby Renzo » Fri Oct 07, 2011 10:16 am

couscous2389 wrote:
Lasers wrote:
Renzo wrote:
couscous2389 wrote:Haha. The question is what constitutes actual notice to the original owner under the open and notorious requirement. If you send the original owner an email informing them of the adverse possession but it goes to their spam mail does this count as actual notice? Would you also have to have some physical manifestation of use to satisfy the notice requirement or does that fall into the category of the actual requirement?


If the question is what constitutes "actual notice," then actual notice means actual notice--as in the original owner actually knows the adverse possessor is there. So, if you send an email that the original owner never reads, there's no "actual" notice, since the original owner is unaware. However, there might be constructive notice, if any reasonable landowner would check their spam box from time to time to make sure no important notices went unread.

this.

if e-mail was un-read, then no actual notice.


Thank you for the input! I guess the only clarification I'm still looking for is whether in notice the two elements, as someone indicated, are: 1) hostility, giving notice to the world at large and; 2) open and notorious; giving notice to the original owner? Does the open and notorious requirement not entail actual use and a physical demonstration of utilizing the land, while the hostility requirement does make this necessary?


Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor; if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.
Last edited by Renzo on Fri Oct 07, 2011 10:48 am, edited 1 time in total.

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vanwinkle
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Re: Adverse Possession.... (?)

Postby vanwinkle » Fri Oct 07, 2011 10:46 am

Renzo wrote:Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.

Renzo is spot-on as usual.

Renzo
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Re: Adverse Possession.... (?)

Postby Renzo » Fri Oct 07, 2011 10:48 am

vanwinkle wrote:
Renzo wrote:Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.

Renzo is spot-on as usual.


Except for the typos...

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ph14
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Re: Adverse Possession.... (?)

Postby ph14 » Fri Oct 07, 2011 10:58 am

Renzo wrote:
couscous2389 wrote:
Lasers wrote:
Renzo wrote:
If the question is what constitutes "actual notice," then actual notice means actual notice--as in the original owner actually knows the adverse possessor is there. So, if you send an email that the original owner never reads, there's no "actual" notice, since the original owner is unaware. However, there might be constructive notice, if any reasonable landowner would check their spam box from time to time to make sure no important notices went unread.

this.

if e-mail was un-read, then no actual notice.


Thank you for the input! I guess the only clarification I'm still looking for is whether in notice the two elements, as someone indicated, are: 1) hostility, giving notice to the world at large and; 2) open and notorious; giving notice to the original owner? Does the open and notorious requirement not entail actual use and a physical demonstration of utilizing the land, while the hostility requirement does make this necessary?


Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor; if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.


Clarifying question: I thought hostile merely meant it was not with the permission of the owner (pretty much redundant with the "adverse" requirement)? Isn't the objective test (state of mind of the possessor is irrelevant) and subjective test (with some states requiring good faith and some requiring bad faith) a different requirement?

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Lasers
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Re: Adverse Possession.... (?)

Postby Lasers » Fri Oct 07, 2011 6:13 pm

ph14 wrote:
couscous2389 wrote:
Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor; if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.


Clarifying question: I thought hostile merely meant it was not with the permission of the owner (pretty much redundant with the "adverse" requirement)? Isn't the objective test (state of mind of the possessor is irrelevant) and subjective test (with some states requiring good faith and some requiring bad faith) a different requirement?

i agree.

my understanding of the commonly used objective hostile requirement is more in line with yours in that intent or the accidental nature of the adverse possession is immaterial. if the land in question was being used as a reasonable owner would, without the permission of the true owner, that would satisfy the hostile requirement, regardless of the adverse possessor's state of mind.

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Flips88
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Re: Adverse Possession.... (?)

Postby Flips88 » Fri Oct 07, 2011 6:19 pm

Renzo wrote:Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor; if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.

We just finished AP in property class but doesn't it vary based on jurisdiction on whether there's a good faith/bad faith/no faith requirement for the adverse possession.

Also, isn't it whether the owner knows or should have known for open and notorious. If they sent an email that went to the spam filter but also built a big house blatantly on their land, then shouldn't the owner have known. I think open and notorious only seems to be at issue when it's a small encroachment on the land.

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ilovesf
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Re: Adverse Possession.... (?)

Postby ilovesf » Fri Oct 07, 2011 10:44 pm

Flips88 wrote:
Renzo wrote:Hostile has to do with intent. For example, imagine a person builds a driveway over some land that belongs to his neighbor; if he does it knowing that the land is not his, but he intends to take it anyways, that is hostile. If he does it by accident, thinking the land is actually his, it's not hostile. Jurisdictions vary on whether hostile possession is required. But in both cases it's both open and notorious, as a reasonably diligent homeowner should notice if someone paves a driveway across their land and parks cars on it.

We just finished AP in property class but doesn't it vary based on jurisdiction on whether there's a good faith/bad faith/no faith requirement for the adverse possession.

Also, isn't it whether the owner knows or should have known for open and notorious. If they sent an email that went to the spam filter but also built a big house blatantly on their land, then shouldn't the owner have known. I think open and notorious only seems to be at issue when it's a small encroachment on the land.

yeah, it varies.




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