วีดีโอ

A good question. The answer is the person(s) using it. Of course, with some easements (e.g., driveways), the owner of the servient land may be using the easement too. In that case, the law dictates that there should be an equitable allocation of the maintenance cost, in proportion to the wear and tear each is imposing on the easement.

I'm assuming that you didn't move in after all this occurred. Unless there is a specific provision in your city/county ordinance or your state statute protecting you for reporting the code violation, you will have to rely on the common-law principle discussed in the video. Not all states have adopted this principle (termed "retaliatory eviction") but many have. You will also have to be prepared to spend the time and money litigating the issue. I'm assuming that you didn't have a written lease with a fixed term. If you did, it sounds as though the landlord violated your lease. That's a breach of contract and the landlord is liable for damages, quite independently or the retaliatory nature of the eviction.

@@fredmertzful inspection was done July 6th 2023 on July 7th an occupancy permit was issued I moved in October 2023. Found all this out febuary 2024.

@@fredmertzful the lease was for Oct 2023 to 2024.

@@tanyawarren6599 Tanya - this situation is dependent on too many issues of state law for me to give you a generic answer. You should consult an attorney familiar with L-T law in your own state, or with legal aid.

@@fredmertzful thank you I appreciate your time

The common law only allowed contingent remainders to pass by intestate succession, not by will or deed. However, this restriction has now been done away with in nearly all US states. It is now reasonable to assume that one can convey a contingent remainder by deed, will, or intestate succession. But bear in mind that if the jurisdiction still follows the common law RAP, and if there are no grandchildren born to A at the time of the original conveyance, the RAP will make the contingent remainder void. Hence, there won't be anything to convey or anybody to convey it.

@@fredmertzful I thought the class closed at A's death, rather than at time of conveyance. Otherwise, it wouldn't make sense to make a devise to one's grandchildren if there are none living at the time of the conveyance. Also, in the example "to A for life, then to A's grandchildren, including those born after A dies," if A has living children at time of conveyance, why are they not counted as "lives in being" such that any child born to them would be within the RAP period?

In the case in which one of the two Jt/Ts signs a contract of sale, one of them has conveyed away his or her "equitable title" and the other has not. They now have different types or qualities of title and hence don't have "unity of title" any more. ("Unity of title" means their interests are identical.) So their Jt/T is severed and becomes a T/C. The contract is perfectly enforceable against the one who signed it, but all he or she can convey is a 50% interest as a T/C. In the case in which both Jt/Ts sign the contract, both have conveyed away their "equitable title" but both still have legal title. Their interests are exactly identical. Hence, they still have unity of title and the Jt/T remains in effect. They are both under the same obligation to sell the property under the contract. If one of them dies before the closing, the other will hold title to 100% of the property (as the surviving joint tenant) and will be obligated to convey the full title to the property to the contract purchaser at the closing.

@@fredmertzful Thank you!

I think you are misconstruing the grantor's intent. The conveyance says "To A for life." There's no indication that anything B does can cut short A's life estate. After A dies, we look to see if B has graduated. If so, B gets immediate possession. If not, we wait to see if B graduates later. If and when B graduates, B gets possession of the land. There's potentially a time gap here, but it's not what I call a "built-in" time gap -- i.e., one that is certain to occur. There may or may not be a time gap, depending on when B graduates. That's not enough to make the future interest an executory interest. It is simply a contingent remainder until B graduates. If B graduates while A is still living, it becomes a vested remainder at that point. By the way, there is no RAP problem, since B can't graduate after B is dead (at least at any college I'm familiar with), and B is a life in being. B's interest is certain to vest or fail within B's own life.

@@fredmertzful Thank you for such a clear explanation.

The course is usually called "Debtor and creditor" or "Creditor's rights" or perhaps just "Remedies."

Probably not. In theory a deed to ones self is a nullity. A court might accept it as an expression of your intent, but I wouldn't count on it. Better to use a deed to a "straw man" and another deed back to you.

Tracy - I can't give you legal advice about your specific situation, but I can give you some general guidance. A person seeking to acquire land title by means of adverse possession can indeed do so by means of the activities of their employees, but only if the employees' activities are open and notorious, continuous, etc. An employee who merely has a few conversations with the True Owner would not come anywhere near satisfying these requirements. Likewise, hiring people who previously worked for the True Owner would accomplish nothing toward becoming an adverse possessor. The adverse possessor's activities must be , which means that they must take place on the disputed land itself, not merely on adjacent land or nearby. - ProfDale

There's a missing word in the final sentence of my reply. It should say "The adverse possessor's activities must be ACTUAL, which means that they must take place on the disputed land itself.... -- ProfDale

@@fredmertzful Makes sense! Thank you Professor!

I am glad you find them beneficial, Ashley.

In nearly all states, there is no "good faith" requirement in order to be a successful adverse possessor. If the true owner asks the putative adverse possessor whether she or he has been trespassing, it just doesn't matter what the adverse possessor says in reply. Whether they admit or deny the trespass, it's their , not their words, that counts. Bear in mind also that "notorious" possession doesn't require that anyone the adverse possessor on the land. The question is whether an observer would be likely to see the AP on the land if the observer looked. If nobody happens to look, that's perfectly OK; the adverse possession can still take effect. Of course, in many cases there will be testimony from an observer who did in fact see the adverse possessor.

@@fredmertzful Thank you Professor. Seems to me that the lesson learned is, if you as a true land owner are more than 51% suspicious of a person who you've seen on your property more than a few times, if even a year or more ago, then you as a true land owner should send them an ejectment letter (unless the true land owner is willing to offer permission and the adverse possessor is willing to acknowledge it in writing). Perhaps a nicely written one but a legal letter just the same. I think I read that sending ejectment letters are high risk because the AP can fight them. Can a true land owner send a "Thank you for your trimming or pruning on my property last year, however that permission is hereby withdrawn letter?" Thank you.

A letter withdrawing permission is fine if you really have given permission in the past. If you haven't, the letter is likely only to muddy the water, and it's better to send a letter demanding that the trespass cease and desist. But if the letter doesn't work and the trespass doesn't cease, you have to be prepared to take legal action against the trespasser.

​@@fredmertzful Thank you Professor. That makes sense.

I'm inclined to agree. The sensible things that the doctrine accomplishes could be achieved equally well by more simple and obvious doctrines. And equitable conversion produces some results that are unexpected and nonsensical, and that all good lawyers draft to avoid. But like it or not, it is still part of our legal landscape. -- ProfDale

What you describe is a witting, surreptitious, dark hearted adverse possessor. Lawyers won't offer much advice to you in advance of the time period maturation, I am afraid (besides giving permission which may not work if they don't want it). As a non-lawyer who has been through this I would offer the following advice to consider: if it's your land, own the heck out of it. Throw out all concerns for how you look to the neighborhood, your potential friendship with said neighbor, or even legal consequences of extreme land ownership. If there's something offensive on your land, remove it since it's your land. Permission is the easiest way to stop it but not if they refuse to acknowledge it. So own it and act like the owner is my best non-legal advice. We have done this and so far it works. We shall see in a few years if they file quiet title anyway. But they will have no possession to prove.

That's right. If the true owner is in possession (which they can probably establish merely by mowing their lawn, watering their shrubs, or letting their kids play there), you can never establish your title to that portion of their land by your adverse possession.

@@fredmertzful Thank you. That is a relief to hear. I have read some things somewhere that caused me to question this but still see it listed as an element of AP in most states. Glad to see an active and present owner cannot lose their land to someone who may be doing something surreptitiously. (I think it was a recent case out of Wisconsin where a judge gave a neighbor a strip of side yard that the owner was on frequently due to proximity but the adjacent neighbor claimed to have planted flowers there years before).

I think your question was misunderstood. The element of "Exclusive Use" is NOT overturned by the acts of the true land owner but is established by the acts of the adverse possessor. For example, let's say that True Land Owner Joe owns the portion of land behind his garage and Adverse Possessor Lori goes in that part of Joe's property for the minimum number of years required by the state, True Land Owner Joe's activity will never negate Adverse Possessor Lori's exclusive Use of Joe's land. Rather, Lori's use will have to be consistent with what a true land owner might do with that land. There is a ton of case law out there where true land owners visit their land frequently and often but still lose their land to an adverse possessor who does something more in line with the expected use of the land. Like rural wooded areas. A true land owner cannot prevent adverse possession by fencing it, posting No Trespass signs, visiting it or even going there and telling someone to leave it. Exclusive use is more a description of what the Adverse Possessor does with it. If they build a tree house or prune trees for example.

You are incorrect. "Exclusive" very much depends on the actions of the True Owner. If the True owner is in possession of the land, the putative adverse Possessor will never prevail and acquire title. In some of your examples above, it may be debatable whether the True Owner's activity is sufficient to amount to possession -- but if it is, and occurs within the required time period, it will absolutely negate the adverse possession because it will make it nonexclusive. - ProfDale

@@fredmertzful Thank you Professor. I am amazed by the variation in case law I am reading (admittedly mostly appellate cases) where the judge sides with the adverse possessor when the true owner had clear title and an impressive list of actions and behaviors on the land in question. It's baffling to me. The elements themselves are easy to follow and understand but the logic behind the decisions is highly subjective or at least it seems.

Let's assume that the downspouts were buried by your neighbor's predecessors in title. If they have been there long enough (you didn't say) and meet the requirements for adverse possession, they might already have accomplished the creation of a new AP title. But do they meet those requirements? There are several issues. First, are they possession? They might be considered merely a minor trespass, sufficient to create at most a prescriptive easement but not to cause an AP title to arise. I think this is quite likely. Second, are they open and notorious? The fact that you actually know about them doesn't answer this question. Would an objective observer viewing the surface of the ground become aware of them? If their only surface outlet is on the neighboring property, then the answer may well be no. If they are not open and notorious, they won't give rise to either title by AP or a prescriptive easement. Those are some of the issues you will need to consider and analyze.

@@fredmertzful Thank you so much for your response. The neighboring home is 13 years old and so the pipes are not yet 15 years in existence as required to qualify for AP. They were completely buried under their lawn and our rural/native landscape. Only after they lived there a couple years did the new neighbors open up the exit to one of the pipes by a about six inches to make it visible (she did so using a contactor at 7 Am and very carefully to avoid being seen but we did). As soon as we saw it we confronted them about it and asked them to move it and they agreed to in the future when they did some landscaping but we didnt trust them due to the fact they acted like they didnt know about it when they obviously did. We then went hunting for other buried pipes by sticking a shovel in the ground and that's how we found the other one. It took several days of hunting to find it. We dont think there are any more. Now the pipes end on their side with pop up drains we paid for just to be free and clear of the encroachment and only did so with their approval since the work was done on their property. So they dont yet qualify for prescriptive easements for the wo pipes since that is a 20 year requirement in Virginia and there are two more years for adverse possession. With the pipes being moved, we arent sure if they can still raise their prior presence since they agreed to us relocating them by a professional company at no charge. Two lawyers told us once those pipes are gone, they could sue us over moving them but not AP due to not having possession anymore. Reading about adverse possession makes me nervous. It seems that so many cases are awarded to the possessors despite anything the true owners do. We just want to take any action we can to avert any other future actions by them. We agree with you that those buried pipes are not open and notorious and a few lawyers told us that as well but if she photographed the exit of one pipe after the contractor cleared it, maybe a judge would side with them. A couple lawyers said in rural areas that judges tend to award possession to adverse possessors due to the nature of the land being wild and their use being similar to what an owner would do (put in pipes). Even though we fenced it. Would some decorative items help? Like benches or something like that?

File in court don’t waste time. Get resurveyed

@@Smart802 file what in court? I dont even know if they are going to do anything. They might though. They no longer have anything on my property.

At this point there's nothing to file. The neighbors have taken no action to claim anything, and may never do so. Filing a suit against them will, in effect force them to make a claim if they have any inclination at all to do so. It's much better to let sleeping dogs lie, particularly when their potential AP claim has now been extinguished. As for a resurvey -- if there's no uncertainty as to the location of the boundary or the drains, it's unnecessary and a waste of money.

The house would not be in joint tenancy or tenancy by the entirety (unless the parties expressly executed a deed that converted it into such). However, it might very well be subject to equitable division, even though it was separate property of the wife and remained such during the marriage. That would depend on the law of the particular state and on the facts of the parties' relationship, and in some states on whether there was fault leading to the divorce. It's a complex determination, and each state is different.

No, that's not a partition. If you are the sole owner, partition is not an applicable concept. It applies only when there are two or more owners as T/C, JtT/WROS, or T/E. But conversion to a condominium would not be a partition in any event.

Yes, the ROFR is a promissory restraint. It isn't "disabling" because it doesn't necessarily prevent the transfer of the owner's estate (though it may dictate to whom the transfer is made). It isn't "forfeiture" because it doesn't deprive the owner of his or her estate if the owner attempts to transfer it. So it's a promissory restraint.

​@@fredmertzful thanks for the clarification! sorry another very basic question from the lecture, a promissory restrain is defined as a restraint on alienation in the form of a covenant or agreement. Can I take it that a restrain in a contract is always promissory (basically is a covenant or agreement equivalent to a contract)? If this is correct, a promissory restrain is in the form of a contract, where is a forfeiture typically written? Thanks in advance!

A promissory restraint might be written in a contract or as a covenant included in a deed or a will. (A covenant or agreement is indeed equivalent to a contract.) A disabling or forfeiture restraint is usually written into the granting or conveying language of a deed or will. Don't get overly focused on where the language appears, though; just focus on what it says.

In modern commercial law practice, there really are not many situations in which lawyers use fee simple defeasibles. The reason is that most people receiving title don't want it taken away from them, even if they violate some condition or promise they have made. Occasionally a FSD will be used when land is conveyed for charitable or environmental purposes, but these are specialized cases.

Zeb - a fee simple may be absolute or defeasible. You have to read the accompanying language to see if there are any words that make it defeasible. If there are none, it's absolute. Either way, it is subject to property taxes, assessed by local governments (usually city or county, or both, plus school districts and other special districts). The fact that it is held in fee simple absolute doesn't exempt it from taxes.

The answer to both of your questions is the same. Putting the property in trust, or placing a mortgage on it, won't have any protective benefit against potential adverse possession by a neighbor. In the case of the mortgage, if it is placed on the property before the AP commences, the adverse possessor will probably acquire title subject to the mortgage -- but he or she will still have title (assuming their adverse possession meets all of the legal requirements, of course).

@@fredmertzful Sir, I have another related question. If Person A, the true owner, has some portion of their land that is not developable, but of potential environmental value, would placing that land into a conservation easement at least help the true owner overcome an adverse possession attempt of that land?

So glad to be helpful, Wendy.

​@@fredmertzful :)

Of course he was wrong. A utility easement gives the utility companies (gas, water, electric, etc.) access to your yard, but only for the purpose of installing and maintaining their lines and pipes. It gives your neighbor the right to receive the services of those companies, but no right at all to physically enter on your property.

I don't see any reason why a city-owned easement running from Lot A across Lot B would have any effect, one way or the other, on the ability of the owner of Lot B to acquire all or part of Lot A by adverse possession. The easement would not give the owner of Lot B any permission to occupy Lot A, and would therefore not thwart Owner B's attempts at adverse possession of Lot A.

@@fredmertzful Thank you. How about if the easement cuts across both properties and included part of the driveway of Lot A though. I'm thinking the Lot B owner might have to file paperwork with the city to redraw the easement to run with the land differently because they could not take over the entire easement as drawn. I assume their possession would not include a driveway that they have never possessed. I have to think the easement runs with the land as is and this would almost be like the owner of Lot B taking possession of public or government property (it's just an easement but the city has dominant status of it). Thank you.

The city's easement won't be affected by any adverse possession activity by the owner of Lot B. The adverse possession would affect only the surface of Lot A, including the driveway on Lot A, but the city's easement will survive and be unaffected. There are two reasons for this: first, the adverse possession won't be adverse or hostile to the easement -- that is, the adverse activity of Owner B will be only on the surface of Lot A and won't interfere with the city's use of the easement. Second, the city is a unit of government, and governmental rights can't be terminated by an adverse possessor.

@@fredmertzful So the lot lines would be redrawn at some point and the easement would not change at all....... and the Lot B owner can adversely possess land inside the easement and take ownership of some of the Lot A land inside the easement. The easement does not complicate it at all. THank you

@@deidrabrey4043 That's right. However, there's nobody to formally redraw the property boundary, unless the adverse possessor hires a surveyor to do it. The city or county that has jurisdiction may or may not recognize the change in location of the boundary, depending on their zoning and subdivision ordinances. The adverse possessor might ask them for formal approval of the change, and they may or may not grant it. There is the potential for a dispute and even litigation on this issue. So in theory the Adverse Possessor may own a strip of Lot A, but the local government may refuse to recognize that ownership. An experienced land use lawyer could be very helpful to the Adverse Possessor on such matters.

Sorry, but I don't do consulting. I'm probably not licensed in your state anyway, but I'm retired and stick to helping students with their studies.