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Author Topic: I'm starting to feel like a jacka$$  (Read 881 times)

yupster567

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I'm starting to feel like a jacka$$
« on: November 08, 2006, 07:36:59 PM »
I am constantly coming up with these ridiculous hypotheticals and annoying the crap out of my fellow law friends.  I've started wondering about things like....

When someone adversely possesses a fee simple subject to condition subsequent, does the AP get a fee simple after the SOL or is he still subject to the condition....

What happens when someone forces an adverse possessor off their land and then they come back, does the SOL start over?  (what's the difference between someone forcing you off and a flood forcing you off; if its a flood, the continuity is not broken)

Ah, well, is there something wrong with me?  Should I stick with the simple stuff because most of this crap won't be on the finals?

I just really enjoy pushing the envelope and discovering the nuances of the law.


m34ch

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Re: I'm starting to feel like a jacka$$
« Reply #1 on: November 08, 2006, 10:23:43 PM »
jesus are you the guy that sits next to me in property?  captain hypo?  adam?

haha- i think the sad part is that i started trying to formulate an answer to your hypo as opposed to an answer to your question

as to your concern- no, i don't think there's anything wrong with you, except that maybe you're a little bit more geeky than your law friends.  you'd fit in fine with mine, though.

i'm right where you are.  everything that comes up now is filtered through the law school lens.  honestly, i think it's just that it's all we've been doing for the past 3 months, and it's really starting to rot our brains.
Albany Law, Class of 2009

antic

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Re: I'm starting to feel like a jacka$$
« Reply #2 on: November 08, 2006, 10:38:59 PM »
If you think these are bad, you should see the hypos our professor tosses about in class!  One of them involved aliens!  I think you're doing exactly right.  Go you!

BTW, I think the answers to your hypos are:

1. An adverse possessor only gets the estate owned by the record-holder against whom he possesses.  If the RH has a life estate, the AP gets a life estate, too, which terminates when the RH dies.  See White v. Brown, 559 S.W.2d 938.  Thus, if the record-holder's estate is a fee simple subject to CS, so is the AP's.

(Of course, the relevant RH is the one who owned at the moment adverse possession began.  So, for instance, if O owns a fee simple when A's adv. poss. starts, but dies before the SoL ends, leaving a life estate to H, A gets a full fee simple when the SoL ends.)

2.  When someone forces an AP off the land, the SoL is tolled, unless the AP immediately takes legal steps to remove him (which he can do, because he has a right to possession against everyone but the RH).  The reason is that, by allowing himself to be chucked out, the AP is not acting as a real owner would, and thus his possession ceases to be adverse.   When a flood rolls down, however, a real owner would run, so the AP is allowed to run, too.

J D

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Re: I'm starting to feel like a jacka$$
« Reply #3 on: November 08, 2006, 11:16:52 PM »
1. An adverse possessor only gets the estate owned by the record-holder against whom he possesses.  If the RH has a life estate, the AP gets a life estate, too, which terminates when the RH dies.  See White v. Brown, 559 S.W.2d 938.  Thus, if the record-holder's estate is a fee simple subject to CS, so is the AP's.

(Of course, the relevant RH is the one who owned at the moment adverse possession began.  So, for instance, if O owns a fee simple when A's adv. poss. starts, but dies before the SoL ends, leaving a life estate to H, A gets a full fee simple when the SoL ends.)

Not so sure about this one.  You're right that the AP only gets the estate owned by the RH against whom he possesses, but the tricky question, in the case of a life estate, is who is that person.  In other words, is the AP possessing against just the life tenant, or also against the remainderman/grantor (depending on whether the life estate is followed by a remainder or a reversion)?  One would seem to think not, since the remainderman doesn't have any entitlement to the land before the life tenant's interest ends, so he couldn't possibly have sued (that's presumably the life tenant's job), and therefore the SOL never starts running against the remainderman.  This is a pretty strong argument, it seems.

But Dukeminier and Krier (5th Ed.) on p. 269, suggests that the remainderman CAN sue 3d parties which trespass on the land or commit waste during the life tenancy.  If this is true, then it seems that the SOL for adverse possession would also run against the remainderman.  Also, the remainderman can't afford to be completely ignorant of what's going on with the land during the life tenancy, since the life tenant can do things which threaten his future interest (i.e., renounce the life estate and remain on the land, commit waste, etc.) causing the life tenant to be an adverse possessor against the remainderman's future interest.  If the remainderman has to worry about these sorts of possibilities, and be ready to sue the life tenant to preserve his future interest, it makes little sense why he shouldn't also have to watch out for what 3d party trespassers do during the life tenancy: either way, he can't just remain blissfully ignorant of what happens to the land during the life tenancy.

This was actually my Property professor's favorite puzzle last year.
"I never think of the future.  It comes soon enough."--Albert Einstein

antic

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Re: I'm starting to feel like a jacka$$
« Reply #4 on: November 09, 2006, 12:44:58 AM »
Not so sure about this one.  You're right that the AP only gets the estate owned by the RH against whom he possesses, but the tricky question, in the case of a life estate, is who is that person.  In other words, is the AP possessing against just the life tenant, or also against the remainderman/grantor (depending on whether the life estate is followed by a remainder or a reversion)?  One would seem to think not, since the remainderman doesn't have any entitlement to the land before the life tenant's interest ends, so he couldn't possibly have sued (that's presumably the life tenant's job), and therefore the SOL never starts running against the remainderman.  This is a pretty strong argument, it seems.

But Dukeminier and Krier (5th Ed.) on p. 269, suggests that the remainderman CAN sue 3d parties which trespass on the land or commit waste during the life tenancy.  If this is true, then it seems that the SOL for adverse possession would also run against the remainderman.  Also, the remainderman can't afford to be completely ignorant of what's going on with the land during the life tenancy, since the life tenant can do things which threaten his future interest (i.e., renounce the life estate and remain on the land, commit waste, etc.) causing the life tenant to be an adverse possessor against the remainderman's future interest.  If the remainderman has to worry about these sorts of possibilities, and be ready to sue the life tenant to preserve his future interest, it makes little sense why he shouldn't also have to watch out for what 3d party trespassers do during the life tenancy: either way, he can't just remain blissfully ignorant of what happens to the land during the life tenancy.

This was actually my Property professor's favorite puzzle last year.

Your point is well taken.  However, I don't believe a remainderman can ever sue a trespasser directly.  If his remainder is vested, he has the right to sue the owner of the life estate for waste, and to enjoin him to evict APs; but, since his estate isn't possessory, I don't think he has any cause of action against the AP himself.  (If his remainder isn't vested, he's sh*t out of luck.)

Of course, this only applies if the adverse possession began before the life estate did. 

If, on the other hand, adverse possession began after the life estate had commenced, the remainderman is secure.  When the life tenant dies, the estate will pass to him (see White v. Brown, cited earlier).  It doesn't matter if the SoL has run yet, because he never had a direct cause of action against the AP.

You are right about life tenants having to remain vigilant in practice.  But, so far as title is concerned, I think that vigilance is required most where the life tenant renounces the estate -- at which point the remainderman is not a remainderman any more but the owner of the full fee simple.

courselines

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Re: I'm starting to feel like a jacka$$
« Reply #5 on: November 11, 2006, 12:25:24 AM »
I was like that the first two years. It starts to go away the 3rd year- get a hobby!
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