PastPaperHero | Rights in real property

Learning Outcomes

This article explains the methods by which rights in real property are created, including:

How to identify the formal requirements for a valid deed, analyze execution, delivery, and acceptance, and determine when defects render a deed void or voidable on the MBE.
How to evaluate land sale contracts, apply the Statute of Frauds and its major exceptions, and distinguish enforceable agreements from unenforceable oral promises to convey land.
How the implied covenant of marketable title operates, which defects commonly make title unmarketable, and what remedies are available to the buyer when the covenant is breached at closing.
How equitable conversion shifts risk of loss and classification of interests between contract and closing, and how these rules interact with questions involving death of a party.
How adverse possession can mature into legal title, with emphasis on applying each element, tacking, disabilities, and the limitations on claims against governmental land.
How easements and other nonpossessory rights are created by express grant or reservation, implication from prior use, necessity, and prescription, and how to characterize easements as appurtenant or in gross.
How to integrate deeds, contracts, easements, and adverse possession into coherent exam analyses, spotting overlapping issues in complex fact patterns involving multiple claimants to the same parcel.

MBE Syllabus

For the MBE, you are required to understand the fundamental methods by which rights in real property are created, with a focus on the following syllabus points:

Identify the requirements for a valid deed (writing, signature, description, intent, delivery, acceptance)
Analyze issues related to the delivery and acceptance of deeds, including escrow and conditional delivery
Apply the Statute of Frauds to contracts for the sale of land
Recognize exceptions to the Statute of Frauds, particularly the doctrine of part performance and related equitable doctrines
Understand the concept of marketable title as an implied condition in land sale contracts and the typical defects that make title unmarketable
Identify the elements required to establish title by adverse possession (actual, exclusive, open and notorious, hostile, continuous)
Distinguish between permissive and hostile possession, and understand tacking and the effect of disabilities
Recognize how easements and similar nonpossessory rights can be created by express grant, reservation, implication, necessity, and prescription

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is NOT typically required for a valid deed?
1. A description of the property.
2. The grantor's signature.
3. Consideration.
4. Words indicating an intent to transfer title.
A contract for the sale of land generally must be in writing to be enforceable under:
1. The doctrine of equitable conversion.
2. The Rule Against Perpetuities.
3. The Statute of Frauds.
4. The doctrine of merger.
To acquire title by adverse possession, the possessor's use of the land must be, among other things:
1. Permissive.
2. Secretive.
3. Intermittent.
4. Hostile.
Delivery of a deed requires:
1. Physical transfer of the deed to the grantee.
2. Recordation of the deed.
3. The grantor's intent to make the deed presently effective.
4. The grantee's signature on the deed.

Introduction

Interests in real property are created through various legal mechanisms. The most common method involves a formal transfer of title using a deed. Additionally, enforceable rights to acquire property arise through land sale contracts, which themselves must typically comply with the Statute of Frauds. Title can also be acquired through operation of law, most notably by adverse possession, where one occupies property in a specified manner for a statutory period. Nonpossessory rights, such as easements, are likewise created by formal conveyance or by long-term use.

These topics fit together in a typical real estate transaction:

The parties first form a land sale contract, which creates equitable rights and obligations and is governed by contract law and the Statute of Frauds.
Between contract and closing, the buyer generally holds equitable title under the doctrine of equitable conversion, while the seller retains legal title as security for the purchase price.
At closing, the seller delivers a deed that, if validly executed and delivered, transfers legal title.
Over time, long-term occupiers or users of land may acquire rights by adverse possession (for title) or prescription (for easements).

Key Term: Deed
A formal written instrument used to transfer an interest in real property from a grantor (transferor) to a grantee (transferee).

Key Term: Grantor
The person who conveys an interest in real property, typically by signing and delivering a deed.

Key Term: Grantee
The person who receives an interest in real property under a deed.

Key Term: Land Sale Contract
A contract in which a seller agrees to convey title to real property to a buyer in exchange for a purchase price, usually payable at closing, creating equitable rights in the buyer and contractual duties on both sides.

Key Term: Equitable Conversion
The doctrine under which, once a specifically enforceable land sale contract is formed, equity treats the buyer as the equitable owner of the real estate and the seller as holding legal title in trust for the buyer, subject to a vendor’s lien for the price.

Understanding how these mechanisms work, and how they interact, is central to analyzing creation of rights in real property on the MBE.

Creation by Deed

A deed is a written instrument that transfers an interest in real property. For a deed to effectively transfer title, it must meet several requirements related to its form, execution, and delivery.

Formal Requirements

Most jurisdictions require the following for a valid deed:

Writing
A deed must be in writing, as required by the Statute of Frauds. The writing can be on any durable medium and can consist of multiple documents that clearly relate to one another.
Signed by Grantor
The grantor must sign the deed. The grantee's signature is not required. The signature can be any mark intended to authenticate the document, including initials or an “X.” An authorized agent may sign for the grantor if the agent’s authority is also in writing (often under an equal dignities rule).
Identify Parties
The deed must identify the grantor and the grantee with reasonable certainty. A deed may be delivered with the grantee’s name left blank if the grantor authorizes someone to fill in the name later; filling in the blank in accordance with the authority is usually effective.
Describe Property
The deed must contain an adequate description of the property being conveyed. While a formal metes-and-bounds legal description is best, any description that reasonably identifies the property is sufficient (e.g., street address or “my farm in X County, State”).
- Parol evidence may be used to resolve latent ambiguities (where the description appears clear but is ambiguous when applied to external facts).
- If the description is so vague that the property cannot be identified at all (e.g., “some of my land”), the deed fails for want of description and cannot be cured by parol evidence.
Words of Transfer (Granting Clause)
The deed must contain words indicating a present intent to transfer the real property, such as “grant,” “convey,” “give,” or “transfer.” The intent must be that the conveyance take effect now, even if possession is postponed.

Consideration is NOT required for a deed to be valid. Property can be transferred by gift deed; however, lack of consideration may affect whether the grantee or subsequent transferees qualify as bona fide purchasers under recording statutes, but it does not affect the validity of the deed between grantor and grantee.

Key Term: Statute of Frauds (Land Contracts)
The rule that contracts for the sale of an interest in land must be in writing, signed by the party to be charged, and contain essential terms (parties, property description, and price/payment terms) to be enforceable.

Capacity and Validity

The grantor must have capacity to convey. A deed may be:

Void (e.g., forged, never delivered, or executed by someone adjudicated incompetent with no power to convey). A void deed conveys no title, even to a bona fide purchaser.
Voidable (e.g., procured by fraud in the inducement, duress, undue influence, or executed by a minor). A voidable deed is effective until set aside and can pass good title to a bona fide purchaser who takes before avoidance.

The MBE often tests whether a particular defect makes the deed void or voidable, especially in priority and recording contexts.

Types of Deeds (Effect on Quality, Not Creation, of Title)

Different types of deeds affect the scope of the grantor’s warranties but not the basic requirements for creation of title:

General warranty deed: Grantor warrants against all defects in title, whether arising before or during her ownership.
Special warranty deed: Grantor warrants only against defects arising from her own acts or omissions.
Quitclaim deed: Grantor makes no promises about title; she conveys whatever interest she has, if any.

If the formal requirements and delivery are satisfied, all of these deed types effectively transfer whatever interest the grantor owns.

Delivery and Acceptance

Transfer of title via deed requires both delivery and acceptance.

Key Term: Delivery (of a Deed)
The grantor's clear expression of intent that a deed be presently operative to pass title, resulting in immediate loss of control over the property interest, even if possession or recording is delayed.

Delivery
Delivery refers to the grantor's intent to make the deed presently effective, meaning the grantor intends to immediately divest herself of the interest conveyed and vest it in the grantee. Physical transfer of the deed is strong evidence of this intent but is neither required nor conclusive.
- Intent is Key
  The central question is whether the grantor manifested an intent that the deed operate immediately. Courts look at words, conduct, and surrounding circumstances.
  - Recording a deed creates a presumption of delivery.
  - Retaining possession of the deed generally creates a presumption of non-delivery, but this can be rebutted by evidence of intent.
- Oral Conditions When Deed Delivered to Grantee
  Delivering a deed directly to the grantee with an oral condition usually makes the delivery absolute; the oral condition is disregarded under the parol evidence rule. For example, if O hands a deed to A and says, “This will take effect only if you marry by the end of the year,” the deed is delivered and effective immediately.
- Delivery to Third Party (Escrow)
  A grantor can deliver a deed to a third party (an escrow agent) with written or clearly proven instructions to deliver it to the grantee upon the occurrence of specified conditions (e.g., payment of the purchase price, closing of a transaction). This is a valid conditional delivery. Title passes automatically upon satisfaction of the condition; the grantor cannot unilaterally revoke once a binding escrow arrangement is created.

Key Term: Escrow
An arrangement in which a grantor deposits a deed (or other instrument) with a neutral third party to be delivered to the grantee upon fulfillment of specified conditions, at which point title passes automatically.

Acceptance
The grantee must accept the deed for title to pass.
- Acceptance is usually presumed if the conveyance is beneficial to the grantee, whether for consideration or as a gift.
- A grantee may expressly reject the deed; rejection prevents the transfer of title.
- Once a deed has been validly delivered and accepted, returning the deed to the grantor, destroying the paper, or attempting to “cancel” it generally does not revest title in the grantor—title can be transferred back only by a new conveyance.

Worked Example 1.1

Grantor executes a deed conveying Blackacre “to Grantee.” Grantor keeps the deed in his safe deposit box with a note saying, “For Grantee upon my death.” Grantor tells Grantee about the deed and the note. Grantor dies. Has delivery occurred?

Answer:
No. Grantor did not manifest the intent to make the deed presently effective. By stating it was “upon my death,” he indicated an intent for the deed to operate like a will, which requires testamentary formalities. Keeping the deed also raises a presumption of non-delivery.

Worked Example 1.2

Owner signs a deed conveying Blackacre “to Buyer.” Owner hands the deed to an escrow agent with written instructions: “Deliver this deed to Buyer when Buyer pays the full purchase price by June 1. I agree I cannot demand the deed back.” Before June 1, Owner changes his mind and tells the escrow agent not to deliver the deed. Buyer tenders the full price on May 30. Who has title?

Answer:
A valid escrow has been created. Owner clearly manifested an intent to make the deed operative upon Buyer’s payment and relinquished the right to reclaim it. When Buyer satisfies the condition by paying the price on May 30, title passes automatically to Buyer. Owner’s attempted revocation is ineffective.

Creation by Land Sale Contract

A land sale contract creates an equitable right in the buyer to obtain title to the property upon payment of the purchase price and fulfillment of conditions.

Key Term: Land Sale Contract
A contract under which a seller agrees to convey title to real property to a buyer for a specified price, typically at a future closing date, creating equitable interests and contractual remedies.

Statute of Frauds

Contracts for the sale of an interest in land must satisfy the Statute of Frauds to be enforceable.

Essential Terms
The writing (or set of writings read together) must:
- Identify the parties (seller and buyer),
- Adequately describe the property, and
- State the price and essential payment terms (if the parties agreed on them).
If the price has not yet been agreed upon, some courts will enforce a contract that leaves price open by implying a reasonable price, but on the MBE you should assume that if the parties agreed on a price, it must appear in the writing.
Satisfaction by Memorandum
The Statute of Frauds can be satisfied by any signed memorandum that reasonably evidences the agreement—such as a letter, email, or a collection of documents that clearly refer to the same deal.
Signature
The writing must be signed by the party against whom enforcement is sought (the “party to be charged”). If the seller sues the buyer, the buyer must have signed; if the buyer sues the seller, the seller must have signed.

Exceptions to Statute of Frauds

An oral land sale contract may still be enforced in equity under several doctrines.

Key Term: Part Performance (Land Contracts)
An equitable doctrine allowing specific enforcement of an oral land contract if the buyer has undertaken acts that are strongly indicative of the existence of a contract, such as possession, payment, or improvements.

Part Performance
Most jurisdictions require at least two of the following three acts by the buyer to specifically enforce an oral land contract:
- Payment of all or a substantial part of the purchase price,
- Taking possession of the property, and
- Making substantial improvements to the property.
These acts must be “unequivocally referable” to the alleged contract, meaning they make sense only if there was a contract for purchase, not merely a lease or license. Part performance generally supports specific performance (forcing conveyance), not money damages.
Full Performance by Seller
If the seller fully performs by conveying title to the buyer, the buyer cannot then invoke the Statute of Frauds to avoid paying the price; the buyer’s obligation is enforceable.
Admission
In some jurisdictions, if the party to be charged admits in pleadings, testimony, or otherwise in court that a contract for the sale of land was made, the Statute of Frauds does not bar enforcement to that extent.
Equitable Estoppel
Even if part performance elements are not strictly met, a party who reasonably and foreseeably relies on an oral promise to convey, to their substantial detriment, may obtain equitable relief (often specific performance or reliance damages) to avoid injustice.

Worked Example 1.3

Seller orally agrees to sell Buyer her house for $200,000. Buyer pays Seller$ 20,000 as a down payment, moves into the house with Seller's permission, and spends $5,000 painting the interior. Seller then refuses to complete the sale. Can Buyer enforce the oral contract?

Answer:
Yes, likely. Buyer has performed acts (partial payment, taking possession, and making improvements) that strongly indicate the existence of a purchase contract rather than a mere lease. Under the doctrine of part performance, Buyer can likely obtain specific performance despite the lack of a writing satisfying the Statute of Frauds.

Equitable Conversion and Risk of Loss

Once a valid, specifically enforceable land sale contract is formed, equitable conversion applies.

Key Term: Equitable Conversion
The principle that, upon formation of a specifically enforceable land sale contract, equity treats the buyer as the equitable owner of the real property and the seller as owning a personal property right to the purchase money.

Key consequences:

Risk of Loss (Majority Rule)
If the property is damaged or destroyed (without fault of either party) between the contract and closing, the risk is on the buyer, who is treated as the equitable owner. The buyer must still pay the price but can usually claim insurance proceeds if named or assigned rights.
Risk of Loss (Minority / Statutory Rule)
Some jurisdictions (e.g., those adopting the Uniform Vendor and Purchaser Risk Act) place the risk on the seller until legal title or possession is transferred. On the MBE, apply the majority rule unless the question specifies otherwise.
Death of Party
If the seller dies after signing the contract but before closing, her real property interest is treated as personalty (a right to the purchase price) that passes to her estate’s personal representative or heirs of personal property. If the buyer dies, his equitable real property interest passes as realty to his heirs or devisees.

Marketable Title

Every land sale contract contains an implied covenant that the seller will provide marketable title at closing, unless the contract clearly disclaims or modifies this obligation.

Key Term: Marketable Title
Title reasonably free from doubt in law and fact—title that a reasonably prudent buyer, aware of the relevant facts and legal issues, would accept, because it does not present an unreasonable risk of litigation.

Defects Rendering Title Unmarketable
Common defects include:
- Existing encumbrances such as mortgages, liens, easements, and restrictive covenants, unless the buyer has agreed to take title subject to them or they are so slight and customary that they do not materially affect value or use.
- Defects in the chain of title, such as gaps, forged deeds, or conveyances by someone without capacity.
- Title based on adverse possession where the adverse possessor has not obtained a quiet title judgment or clear record evidence. Many courts treat this as unmarketable because it invites litigation.
- Significant encroachments, such as a building that encroaches onto a neighbor’s land or an encroachment by a neighbor onto the property.
- Zoning or building code violations, such as an existing structure that violates setback requirements or height limits. Mere existence of zoning restrictions does not make title unmarketable; only a violation does.
Mortgages and Liens at Closing
The seller can use the purchase money at closing to pay off existing mortgages or liens and thereby satisfy the duty to deliver marketable title. The buyer cannot refuse to close merely because a mortgage exists if it will be discharged at the closing from the seller’s proceeds.
Timing
The seller must furnish marketable title only at the closing date. Defects discovered earlier give the seller an opportunity to cure. The buyer cannot rescind before closing based on unmarketability unless the defects are incurable or the seller refuses to cure.
Remedies
If title is unmarketable at closing and the seller cannot cure within a reasonable time:
- The buyer can rescind and recover any deposit,
- The buyer can sue for damages (e.g., out-of-pocket losses), or
- The buyer can seek specific performance with an abatement (reduction) in the purchase price reflecting the defect.

Worked Example 1.4

Seller contracts to sell Blackacre to Buyer. Unknown to Buyer, there is a recorded easement giving Neighbor a driveway across part of Blackacre. The contract is silent about easements. On the day of closing, Buyer discovers the easement and refuses to close. Seller insists that the easement is “minor” and that Buyer must perform. Who is correct?

Answer:
Buyer is generally correct. An undisclosed easement is an encumbrance that makes title unmarketable unless the buyer agreed to take subject to it or it is so minor and customary that it does not materially affect value or use. On typical MBE facts, an easement usable by another property owner is a significant encumbrance. Buyer may refuse to close and seek rescission or specific performance with an abatement.

Doctrine of Merger

At closing, the land sale contract is said to merge into the deed:

Covenants in the contract relating to title are replaced by the covenants (if any) in the deed.
After closing, the buyer’s remedies for title problems ordinarily arise under the deed, not the contract.
Collateral promises in the contract (e.g., to repair the roof before closing, or to install a fence) generally do not merge and remain enforceable after closing unless clearly extinguished.

This doctrine explains why the type of deed (general warranty, special warranty, quitclaim) matters for post-closing title disputes.

Creation of Easements (Nonpossessory Use Rights)

In addition to full ownership interests, the law recognizes nonpossessory rights to use another's land, primarily easements. Creation of these rights is frequently tested alongside deeds and contracts.

Key Term: Easement
A nonpossessory interest in land that gives its holder the right to use (or to prevent certain uses of) the land of another for a particular purpose.

Types of Easements

Easement Appurtenant
An easement that benefits the possessor of a particular parcel of land (the dominant estate), such as a driveway easement that benefits Parcel A over Parcel B.

Key Term: Easement Appurtenant
An easement tied to the ownership of a dominant parcel, benefiting that parcel’s use and enjoyment and running automatically with transfers of the dominant land.

Easement in Gross
An easement that benefits a person or entity independently of ownership of adjacent land, such as utility line easements.

Key Term: Easement in Gross
An easement benefiting its holder personally (or commercially) rather than benefiting another tract of land; it does not attach to a dominant estate.

Easements can be affirmative (right to do something on the servient land, like cross it) or negative (right to prevent the servient owner from doing something, such as blocking light). The MBE focuses on affirmative easements.

Methods of Creation

Because an easement is an interest in land, the creation methods resemble those for ownership interests.

Express Easements

Express Grant or Reservation
An easement can be created by deed or will:
- A grant from the servient owner to the easement holder (e.g., “O grants to A an easement for a driveway across Blackacre”).
- A reservation when the owner sells land but reserves a right to continue using part of it (e.g., “O conveys Blackacre to A, reserving a right-of-way over the north 10 feet”).

Express easements must satisfy the Statute of Frauds: they must be in a signed writing that adequately describes the easement and the land burdened. Once properly created, they are typically of perpetual duration unless limited by the grant.

Implied Easements (From Prior Use)

Key Term: Easement by Necessity
A court-created easement arising when land is severed and one parcel is left without access to a public road or other essential resource, requiring a strictly necessary route across the other parcel.

Key Term: Easement by Prescription
An easement acquired by long, open, and adverse use of another’s land, for the statutory period, analogous to title by adverse possession but for use rather than possession.

An easement can be implied without a writing when:

The land was originally a single parcel under common ownership.
That parcel is severed into two or more parcels.
Before severance, one part was used in a way that benefits another (a "quasi-easement"), such as a visible driveway, drainage line, or path.
The prior use was apparent and reasonably necessary to the enjoyment of the dominant portion.

Courts infer that the parties intended the prior use to continue.

Easement by Necessity

Separate from prior-use easements, an easement by necessity arises when:

The land was a single parcel under common ownership just before severance.
Severance creates at least one landlocked parcel with no legal access to a public road or other essential area.
The easement is strictly necessary (not merely convenient). If any legal access exists, even if inconvenient, strict necessity usually is not met.

The easement by necessity typically lasts as long as the necessity continues.

Prescriptive Easements

A prescriptive easement arises when someone uses another’s land in a way that meets the elements analogous to adverse possession, except that exclusivity is usually not required:

Open and notorious use, visible enough to put a reasonable owner on notice.
Adverse (non-permissive) use, without the owner’s consent.
Continuous and uninterrupted use for the statutory period.

Unlike adverse possession, the user does not claim exclusive possession; instead, the right acquired is to continue the specific use.

Worked Example 1.5

O owns a large tract. For many years, O uses a visible dirt driveway across the back half to access the public road from the front half. O sells the front half (including the house) to A by deed that is silent about any easement. A later discovers that there is no other practical way to reach the road except the dirt driveway across O’s retained back half. May a court find that A has an easement over O’s back land?

Answer:
Likely yes, as an easement implied from prior use. Before severance, O used the driveway across what became the servient portion to benefit what became A’s parcel. The use was apparent (a visible driveway) and reasonably necessary to A’s enjoyment of the property. A court can infer that the parties intended this use to continue and impose an implied easement appurtenant in A’s favor.

Creation by Adverse Possession

Title to real property can be acquired by adverse possession if a person occupies the property in a certain manner for the statutory period.

Key Term: Adverse Possession
A method of acquiring legal title to real property by possessing it for the statutory period in a manner that is actual, exclusive, open and notorious, hostile (non-permissive), and continuous.

Elements

Most jurisdictions require the possessor to prove:

Actual Possession
The possessor must physically occupy the land in a manner consistent with how a reasonable true owner would use it, given the nature, location, and character of the property (e.g., living in a house, farming a field, maintaining a fence).
Exclusive Possession
Possession cannot be shared with the true owner or the public generally. Occasional shared use by others may not defeat exclusivity, but if the true owner also uses the land as an owner normally would, exclusivity is lacking.
Open and Notorious Possession
Possession must be sufficiently visible and obvious to put a reasonable true owner on notice that someone is occupying the land under a claim of right. Secret or hidden occupation will not satisfy this element.
Hostile Possession (Claim of Right)
Possession must be without the true owner's permission.

Key Term: Hostile Possession
Possession of land that is inconsistent with and without the consent of the true owner; hostility in this context does not imply ill will, only non-permissive occupancy.

Most jurisdictions apply an objective test: the possessor's subjective state of mind (knowing trespasser versus good-faith mistaken belief) is irrelevant.
If possession starts permissively (e.g., as a tenant, licensee, or family member with permission), the statute does not begin to run until the possessor clearly repudiates the permission and gives the owner notice of an adverse claim.
Continuous Possession
Possession must be continuous for the statutory period. The possessor need not be on the land every day, but use must be as continuous as a reasonable true owner’s use would be, given the nature of the property (e.g., seasonal use of a vacation home may suffice).

The statutory period varies by jurisdiction (commonly between 5 and 20 years). The MBE generally does not require a specific number unless the statute is set out in the question.

Key Term: Color of Title
A claim to ownership based on a written instrument (such as a defective deed) or judgment that appears valid on its face but is actually defective; in some jurisdictions, possession under color of title can shorten the statutory period or expand the area deemed possessed.

Key Term: Tacking
The doctrine allowing successive periods of adverse possession by different possessors to be added together to meet the statutory period, so long as each possessor is in privity (through voluntary transfer such as deed, will, or inheritance).

Tacking and Privity

Successive adverse possessors can “tack” their periods of possession if there is privity between them—typically a voluntary transfer of the possessed interest (e.g., sale, gift, or devise). If one adverse possessor is ousted by another trespasser, there is no privity and tacking does not apply; the clock starts anew for the ousting possessor.

Disabilities

If the true owner is under a legal disability (e.g., minority, insanity, or imprisonment) at the time adverse possession begins, the running of the statute may be tolled until the disability is removed. Key points:

The disability must exist at the time the adverse possession starts; later-arising disabilities do not stop the clock.
Only disabilities recognized by statute count.
No “stacking” of disabilities—if one is present at the start, later disabilities are irrelevant.

Government Land

As a general rule, adverse possession does not run against the government. Title to federal or state-owned land ordinarily cannot be acquired by adverse possession unless a statute explicitly allows it.

Scope of Title Acquired

If adverse possession is established:

The possessor acquires title to the estate that the true owner held (usually fee simple).
If possession was under color of title that purports to cover a larger tract than the possessor actually used, some jurisdictions deem the possessor to have constructively possessed the entire tract described, provided no other person was in actual possession of any part.
Adverse possession of part of a tract does not necessarily extinguish easements or other servitudes benefiting third parties unless the possessor acts in a way that is inconsistent with those rights for the statutory period (e.g., blocking a right-of-way).

Worked Example 1.6

Owner permits Neighbor to farm a strip of Owner’s land along their boundary each summer. After five years, Owner sells to Buyer but does not mention Neighbor’s permission. Buyer tells Neighbor to stop using the strip. Neighbor continues to farm the strip every summer for 15 more years, openly and exclusively, despite Buyer’s repeated oral objections. The statutory period is 10 years. Has Neighbor acquired title by adverse possession?

Answer:
Neighbor’s initial use was permissive and therefore not hostile. When Buyer bought and then objected, Neighbor’s continued occupation became clearly adverse. From that point, Neighbor’s open, exclusive, continuous use for more than 10 years satisfies all elements of adverse possession. Neighbor acquires title to the strip, despite the original permission from Owner.

Key Term: Adverse Possession
(Repeated for emphasis) Acquisition of legal title through possession that is actual, exclusive, open and notorious, hostile, and continuous for the statutory period.

Key Point Checklist

This article has covered the following key knowledge points:

A valid deed requires a writing, signature by the grantor, identification of the parties, an adequate property description, and present words of transfer. Consideration is not required.
The grantor must have capacity, and defects can render a deed void (no title passes) or voidable (title may pass to a bona fide purchaser).
Different deed types (general warranty, special warranty, quitclaim) affect covenants of title but not the basic validity of the conveyance.
Delivery of a deed requires the grantor's present intent to transfer the interest and typically loss of control over the instrument; acceptance by the grantee is also necessary and is usually presumed.
Conditional delivery directly to the grantee is generally treated as unconditional; conditional delivery via escrow to a third party can be effective, with title passing on satisfaction of the condition.
Land sale contracts must generally satisfy the Statute of Frauds (writing, signature by the party to be charged, and essential terms).
Key exceptions to the Statute of Frauds include part performance, full performance by the seller, judicial admissions, and equitable estoppel.
The doctrine of equitable conversion treats the buyer as equitable owner and usually places the risk of loss on the buyer between contract and closing unless a contrary statute applies.
Sellers implicitly covenant to provide marketable title at closing—title reasonably free from doubt and serious risk of litigation, without undisclosed significant encumbrances or violations.
If title is unmarketable at closing and cannot be cured, the buyer may rescind, seek damages, or seek specific performance with abatement.
Easements can be created expressly (by grant or reservation), by implication from prior use, by necessity, or by prescription, and may be appurtenant (attached to land) or in gross (attached to a person or entity).
Adverse possession requires actual, exclusive, open and notorious, hostile, and continuous possession for the statutory period; permissive use does not qualify until it is clearly repudiated.
Tacking allows successive adverse possessors in privity to combine their periods of possession, and disabilities existing when possession begins may toll the statutory period.
Adverse possession typically cannot divest the government of title absent statutory authorization.

Key Terms and Concepts

Adverse Possession
Color of Title
Deed
Delivery (of a Deed)
Easement
Easement Appurtenant
Easement by Necessity
Easement by Prescription
Easement in Gross
Equitable Conversion
Escrow
Grantor
Grantee
Hostile Possession
Land Sale Contract
Marketable Title
Part Performance (Land Contracts)
Statute of Frauds (Land Contracts)
Tacking

Rights in real property - Creation