Siegel's Property: Essay and Multiple-Choice Questions and Answers by Brian N. Siegel & Lazar Emanuel

Siegel's Property: Essay and Multiple-Choice Questions and Answers by Brian N. Siegel & Lazar Emanuel

Author:Brian N. Siegel & Lazar Emanuel [Siegel, Brian N.]
Language: eng
Format: azw3
Publisher: Wolters Kluwer Law & Business
Published: 2014-03-16T16:00:00+00:00


Answer to Question 24

Important aspects:

Encroachment, boundary settlement, relative hardship doctrine, statutory period for adverse possession, spite fences.

Summary:

Both Betty and Arthur appear to have valid claims against the other. It appears that Arthur trespassed on Betty’s property when Arthur tore down the fence separating their properties. However, the trespass may be rendered moot if Arthur can show that he gained title to the land based on adverse possession. Arthur’s success on this point may depend upon the statutory period for adverse possession in this jurisdiction as Arthur has only been in possession for five years. Alternatively Arthur could probably succeed in showing that the new fence should be recognized as the agreed upon boundary. Even if Arthur’s fence does encroach on Betty’s party there is a strong likely hood that while he may have to pay Betty for the loss in the value of the land, it is unlikely that Arthur would be forced to take on the expense of tearing down and relocating the fence to the property boundary. On the other hand, Betty was likely within her rights to cut the branches of Arthur’s pecan tree and perhaps recover for the damages she sustained to her roof as a result of the falling pecans. Arthur’s rights against Betty with respect to Betty’s fence would depend upon whether Betty’s fence would be declared a spite fence (built solely to interfere with Arthur’s use and enjoyment). But Betty can likely show that a non-malicious reason for the fence—to block the view of Arthur’s security cameras.

Answer:

(1) Betty v. Arthur:

(a) Arthur’s fence:

Betty will contend that Arthur trespassed when he tore down the old fence separating their properties. A trespass occurs when the defendant intentionally intrudes upon, beneath, or above the surface of the plaintiff’s land. (See Restatement (Second) of Torts, §159.) Here, Betty claims that the old fence that Arthur tore down was on her property. If true, then Arthur trespassed on her property when he entered her property without her consent and removed the fence. Although Arthur may claim that he did not intend to trespass, but mistakenly believed that he was on his own property, his mistaken belief is irrelevant. The intent element for trespass is satisfied by Arthur’s conscious, intentional act of removing the fence.

Arthur will claim, even if the fence is technically on Betty’s property, that he has gained title to that strip of land by adverse possession, or in the alternative, that the fence is located on an agreed-upon boundary. The elements for adverse possession are satisfied where the adverse possessor enters upon and continuously and exclusively occupies another’s land in an open, notorious, visible, and hostile manner throughout the requisite statutory period. The building of a fence is generally sufficient to satisfy the open, notorious, continuous, and exclusive requirements. Arthur also can likely satisfy the hostility requirement. Most courts hold that one who possesses an adjoining landowner’s land, under the mistaken belief that he has only possessed up to the boundary of his own land, meets the hostility requirement.



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