Best if printed in landscape.
previous section generally describes the steps involved in purchasing
real property. This section introduces basic principles about other ways
ownership of land is transferred.
Acquisition by Inheritance:
- Personal representative
of deceased landowner prepares a deed of distribution transferring land
to heirs according to the deceased landowner's will or intestate
succession laws, whichever is applicable.
- A will is a legal
document that disposes of a decedent's estate; that is, a will specifies the heir or heirs whom the decedent wants to receive the property. Restated,
a will directs the transfer of a person’s property at their death.
- Suggestion -- prepare a will. A will can do more than identify heirs; it can also appoint who will administer the estate, who will care for minor children of the decedent, bequeath property to charitable entities, establish a trust, and the list goes on. A well-planned vision for the future, documented in a clearly-stated will, helps assure that the testator's goals are achieved.
- Individuals can prepare their own will (but that is not recommended); see N.D.C.C.
§30.1-08-02. Execution - Witnessed wills - Holographic wills.
- "2. A will ...
is valid as a holographic will, whether or not witnessed, if the
signature and material portions of the document are in the testator's
- A testator's surviving spouse is entitled to at least an intestate share of the estate, unless
- "It appears from the will or other evidence that the will was made in
contemplation of the testator's marriage to the surviving spouse;
- The will expresses the [intent] that it ... be effective notwithstanding any
subsequent marriage; or
- The testator provided for the spouse by transfer outside the will and the intent
that the transfer be in lieu of a testamentary provision is shown by the testator's
statements or is reasonably inferred from the amount of the transfer or other
evidence." N.D.C.C. §30.1-06-01(1).
- A child is not protected from being excluded from a parent's will, except if,
- the child was born or adopted after the execution of the will, or
- the child was excluded from the will because the parent believed, at the time the will was executed, that the child was dead. N.D.C.C. §30.1-06-02.
- An heir must survive
the decedent by more than 120 hours to inherit the property; N.D.C.C. §30.1-09.1-02.
- If an heir
does not survive the decedent by more than 120 hours (this includes
an heir predeceasing a decedent), the decedent's property passes
according to the "residuary clause" in the decedent's will, or if
there is no residuary clause, the property passes according to
the laws of intestate succession. The property will not pass to
the heirs of the predeceased heir. See Estate
of Mygland, 421 N.W.2d 816 (N.D. 1988).
- A person will not
inherit from the estate of a former spouse if the will of the former
spouse had not been revised since the time of the divorce; (N.D.C.C.
- A person who murders
another will not inherit from the victim's estate; N.D.C.C.
an heir, who receives a specific bequest, will receive the property subject to an existing encumbrance unless
the will specifies differently; (N.D.C.C. §§30.1-09-09 and 30.1-19-14). For example if the deceased landowner's will specifies that you are to receive
a tract of land but the land is encumbered by a note and mortgage, you will
be responsible for paying the debt (unless the will specifies differently). If
you do not want to inherit the encumbered land, you can disclaim the
inheritance (see next point).
- An heir can disclaim (refuse to accept) all or part of an inheritance/bequest; N.D.C.C.
§30.1-10.1-02(1). For example, an heir may decide to disclaim an
inheritance if the amount of debt encumbering the property is about
the same as the value of the property.
succession laws are used to distribute property that is not disposed
of by a will; N.D.C.C.
§30.1-04-01. Restated, any property for which an heir has not been specified in the decedent's will, must transfer according to the state's intestate succession statute.
- Suggestion -- A
residuary clause in a will directs who should receive any property in
the estate that is not transferred by some other directive within the
will; this clause prevents any property (including disclaimed property) from
passing by intestate succession or escheating to the state.
- N.D.C.C. §30.1-04-01(2). " A decedent, by will, may expressly exclude or limit the right of an individual or class
to succeed to property of the decedent passing by intestate succession." See Estate of Samuelson, 2008 ND 190. The testator's will "provided: 'I have intentionally failed to provide for my half sister .. '" This statement, however, did not disqualify the half sister's heirs from taking a share of the testator's estate because the testator had not
"expressly exclude[d] the [half sister's] heirs."
- Receiving an inheritance
is not "income" to the heir; that is, it is not subject to income tax.
estate is not subject to an estate tax unless the estate is worth more
than $3.5 million dollars, but with some planning, owners of larger
estates can take steps to minimize taxes (such as dividing ownership between married spouses) -- see an appropriate professional.
- "For Estate Tax Purposes in years 2006, 2007 and 2008 the Unified Credit is $780,800 and the Applicable Exclusion Amount is $2,000,000...
For Estate Tax Purposes in year 2009 the Unified Credit is $1,455,800 and the Applicable Exclusion Amount is $3,500,000." Excerpt from Internal Revenue Service: Estate and Gift Taxes.
- Another question with respect to taxes and inherited property is "does the heir pay income tax on the capital gains when the property is sold after it is inherited." The general answer is that property which passes through an estate receives a "step-up" in basis which prevents many heirs from having to report any capital gains on inherited property that is sold soon after the property is inherited. For example, individual A purchased a tract of land for $15,000 in 2000; that amount ($15,000) would be the basis in the land for A. When A dies in 2007, the land has a value of $22,000 and B receives the land as an inheritance from A. Under federal income tax land, the basis in the land for B is "stepped up" to $22,000; that is, the value for the purpose of A's estate. If B then sells the land for $22,000 (its value), B has no capital gain (taxable income) from selling the inherited property (the selling price of $22,000 minus the basis of $22,000 results in no taxable gain). This tax outcome is different than if A had gifted the land to B in 2007 -- as described in the next section.
- Alternative scenario: If A had not died but instead sold the land in 2007 for $22,000, A would have had $7,000 taxable income ($22,000 selling price minus the $15,000 basis). Thus a statement that is sometimes made is "pass appreciated property through an estate in order to get a step up in basis" to minimize income tax.
- Another scenario: If the land appreciates between the time that B inherits it and sells it, B would have capital gain on that amount. For example if B sold the inherited land for $23,500, B would have a gain of $1,500, that is, the difference between the stepped up basis of $22,000 and the selling price of $23,500.
- Note, there is a difference between income and estate taxes.
Acquisition by Gift:
- A landowner can give the land to another person by preparing
and delivering a deed to the donee or an agent of donee.
- The donee or agent
of the donee must be aware of the transfer and the deed must not be recallable (revocable)
by donor (N.D.C.C.
- This rule impacts
attempts to transfer ownership of land at time of death by using
a deed previously prepared by the owner/decedent, rather than using a will.
- A gift is considered complete only when the "sticks in the bundle" have transferred to the new owner; that is, the new owner knows he or she is the owner, has taken possession of the property, is deciding how the property should be used and who will use it, etc. Without a change in who makes the decisions about the property, the gift is not considered as having occurred.
Restated, the donee needs to be aware of the gift and needs to "accept" the
gift by assuming the responsibilities of ownership.
- "We have said a valid gift requires an intention by the donor to give property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee." Doeden v. Stubstad, 2008 ND 165, 755 N.W.2d 859.
- Receiving a gift
is not "income" to the donee; that is, it is not subject to income tax.
gift will not be considered a "taxable gift" if total gifts from the
donor to the donee are less than $12,000 for the year. There are other
important provisions in gift tax law that minimize the amount of tax
that will result from giving property (such as, gifts between spouses
are exempt from gift tax) -- see an appropriate professional.
- Another question with respect to taxes and gifted property is "does the donee pay income tax on the capital gains when the property is sold after it is received as a gift." The general answer is that property which is given to another person has a "carry over" basis. For example, individual A purchased a tract of land for $15,000 in 2000; that amount ($15,000) would be the basis in the land for A. If A gives the land to B in 2007 when the land has a value of $22,000, B's basis in the land would be carried over from A; that is, B's basis would be $15,000. If B then sells the land for $22,000 (its value), B has $7,000 taxable income from selling the gifted property (the selling price of $22,000 minus the basis of $15,000). This tax outcome is different than if the land had passed to B as an inheritance from A -- as described in the previous section.
- Note, there is a difference between income tax, estate tax and gift tax.
Possession and Prescription (N.D.C.C.
Many people find it interesting that landowners can lose some or all of their "sticks in the bundle of rights" to another individual.
- Adverse possession -- the legal concept that a person can acquire ownership of land from another person by continuous use of that other person's land -- "squatter's rights?"
- Prescription --
likewise, a person can acquire an easement (right to use) on another person's land by continuous use of the easement, for example, a pathway.
- For both of these concepts, a key point is that the continuous use must be without the landowner's permission. If you are using my land without my permission, you are trespassing. As the landowner, I would have the legal right to take action against you because you are trespassing. The law, however, holds that if I do not stop your trespassing, I am not acting like a landowner (it is presumed that a landowner will take legal steps to stop trespassing).
- If I do not act like the owner and the other person acts like the owner by using the land, the law will eventually recognize the trespasser as the owner, rather than the current owner who is not acting like an owner. This is the foundation for the legal concepts of adverse possession and prescription.
- North Dakota law:
the trespasser must use the land or the right for 20 years to acquire ownership or an easement; except, the period of time will be only 10 years to acquire ownership (i.e., adverse possession) if the possessor:
- is on the land
under a color of title (a writing which appears to convey
- has paid all
taxes assessed on the land.
- Montana law on adverse possession is based on a period of 5 years; see Part 4 of Chapter 70-19.
- Essential Elements
of Adverse Possession
- Actual possession
- appropriate for the land and locality
- Exclusive possession
- keep all others off the land including true owner
- Open - visiting
owner would know (could see) that someone else is using/claiming
- Notorious -
known to neighbors that you are in possession of the land
- as appropriate for land and its use
- Hostile or
adverse - on the land without the permission of the real owner,
or on the land intending to claim ownership
- Will renting
land for an extended period (for example, more than 20 years)
entitle the tenant to claim ownership through adverse possession?
- Does a
hunter in North Dakota have the landowner's implied permission to be on
the land if the land is not posted?
- "To acquire
ownership of property by adverse possession the property of another
must be held by open and hostile possession for a specific time...
Under N.D.C.C. §28-01-04 the required period is twenty years. Under
N.D.C.C. §47-06-03 one can acquire title by adverse possession after
ten years if the possession is under color of title coupled with the
payment of taxes. A deed constitutes color of title only as to the
land described in it, and land occupied under the mistaken belief
it is encompassed in the deed does not confer adverse possession under
color of title... Adverse possession may be asserted where there has
occurred an encroachment over a boundary line, whether or not the
encroachment is the result of an intentional action." State
Bank & Trust of Kenmare v. Brekke, 1999 ND 212, 602 N.W.2d 681
- Again -- adverse possession can be described as " my presence on
your land is a trespass and you can bring a lawsuit seeking to remove
me from your land. Adverse possession states that if I trespass on
your land for 20 years and you do not take action to remove me, the
legal system is going to give me ownership of the land because I am
acting more like the owner (by using the land) than you are."
- Adverse possession does not require the landowner to use the land, but does require that the landowner protect his or her right to be the exclusive possessor of the land.
- To defend against
adverse possession, the real owner should be:
- certain to
inform users that the use is by permission and subject to termination (sounds like a license as discussed in a previous section),
- prepared to
regain possession by court action, if necessary.
- Does the
transfer of land that is being adversely possessed terminate
the adverse possessor claim to the land? Why?
- Adverse Possession
is not applicable against:
- Public property
- Future interest
because an adverse possessor acquires no more property interests
than the party with current possessory interest
- Tacking of time
is recognized -- "where successive adverse occupants hold in privity
with each other under the same claim of title, the time limit for maintaining
an action may be computed by the last occupants from the date the cause
of action accrued against the first adverse user." James
v. Griffin, 2001 ND 90, 626 N.W.2d 704
- Example, if
my parent trespassed on (adversely possessed) your land for 15 years,
died, and I inherited my parent's estate and immediately began trespassing
on your land, I only need to trespass for another 5 years to reach
the total of 20 years.
- Visit Law.com
Dictionary to find a definition of privity: "connection
or mutual interest between parties"
- A quiet
title action is the process by which a successful adverse possession
As described on another web page:
A quiet title action is a court proceeding wherein a person who has an interest in real property is willing to invest the time and cost to assure the ownership of the land is accurately understood and documented. This person would initiate a lawsuit (a legal proceeding in court) that includes advertising that all persons claiming an interest in the tract of land are required to indicate to the court that they believe they have a legal interest (a stick in the bundle) in the real property.
At an announced time, the court will hold a hearing to review all the ownership claims (including all evidence the interested parties provide for the court's (judge's) consideration). After reviewing the evidence, the judge will announce (make a ruling) as to who owns which legal rights (sticks in the bundle). This ruling will be recorded with the register of deeds and from that time forward, that decision will be the basis for determining the ownership of that land.
A quiet title action can be expensive so it is not used unless necessary, but it is the process by which our legal system documents that someone has acquired an interest in a tract of land by adverse possession or prescription. For example, the adverse possessor will provide the court with evidence that the land has been used for 20 years without permission of the owner (as well as evidence that all the elements of adverse possession have been met). If the judge is convinced that the evidence credible and that all the requirements for adverse possession have been met, the judge will rule that the adverse possessor now has an ownership interest in the land. The public record will then be updated to document that the adverse possessor has an ownership interest.
- Excerpt by Robert P. Achenbach, Jr., Agricultural Law Update 23:9, September 2006. ADVERSE POSSESSION -- CEMETARY. The plaintiff's predecessor in interest
had sold a portion of a farm but reserved a two-acre parcel for use as a
cemetery. The parcel was sold to subsequent buyers until the defendants
purchased a portion of the original parcel which included the cemetery.
None of the deeds in the subsequent sales mentioned the reservation of the
cemetery but the deeds did reference earlier deeds. The owners of the main
parcel [defendants] had farmed the land up to about 30 feet of the cemetery and had cut the weeds and brush in the cemetery. No burials had taken place in the
cemetery after 1946. The plaintiff sought to quiet title to the cemetery
and the defendant claimed title by adverse possession. The plaintiff
argued that the defendant did not meet the test of exclusive possession because the cemetery was occupied by the graves. The court rejected this argument as without precedent and upheld the jury verdict for the defendant's
acquisition of title to the cemetery by adverse possession. Jernigan v. Herring, 2006 N.C. App. LEXIS 1901 (N.C. Ct. App. 2006). End of excerpt. See http://www.aoc.state.nc.us/www/public/coa/opinions/2006/051233-1.htm.
- If no one else
owns the property or the property interest, the state becomes the owner.
- U.S. Supreme Court
decision that may be of interest -- Delaware
v. New York, 507 U.S. 490 (1993).
- Note that this case illustrates that property does not "end up without an owner" only when someone dies without heirs; property also escheats when owners forget that they own some property, such as a forgotten bank account or investment fund.
- Note that this case was "tried" before the U.S. Supreme Court. This is the only court that can hear a case that involves states suing each other. Otherwise, the U.S. Supreme Court rarely "tries" a case; instead, it primarily serves as an appellate court.
- In North Dakota,
property that escheats to the state is used in support of education.
of adverse possession and escheat are intended to clarify the ownership of property rights, which in turn, maintains the marketability of land and assures it is available for economic
use. If the ownership of land is not clear, people are likely to not use it or improve it because they do not know whether they will still have the land in the future (thus risk not having an opportunity to recover their investment). Accordingly, legal mechanisms to clarify ownership of land are important in encouraging investment and economic use.
of other property rights:
- Also see
38-18.1 wherein "Any (severed) mineral interest is, if
unused for a period of twenty years ... deemed to be abandoned, unless
a statement of claim is recorded in accordance with section 38-18.1-04.
Title to the abandoned mineral interest vests in the owner or owners
of the surface estate in the land in or under which the mineral interest
is located on the date of abandonment."
Spring Creek Ranch
v. Svenberg, 1999 ND 113, 595 N.W.2d 323
- Also see
§§61-04-23 When an appropriator fails to apply water to a beneficial
use or ceases to use it for a beneficial use for three successive years,
the state engineer may declare the water permit forfeited,
unless the failure to use the water was due to unavailability of water,
a justifiable inability to complete the water works, or other good and
sufficient cause. After forfeiture, state government is authorized to reappropriate the water right to another user based on the normal legal process of appropriating water rights and granting water permits.
- Authority granted
to governmental units and certain public utilities allowing them to
force individual to sell land for use by the public (government) or
- N.D.C.C. chapter
- Eminent domain is not authorized in the Constitution, nor is it explicitly prohibited. Therefore, it could be described as implicitly permitted. Thereafter, statutory laws were enacted to explicitly authorize government (and others) to use eminent domain to acquire property for public use. However, the Constitution does explicitly require that when eminent domain is used (that is, private property is taken), the property owner must be compensated.
- The proposed use must
be a public or beneficial use.
- "Eminent domain
is the right to take private property for a public use. N.D.C.C.
§32-15-01(1). Private property cannot be taken for a public
use without payment of just compensation to the owner. N.D.
Const. Art. I, § 16; N.D.C.C. § 32-15-01(2). Before an authorized
entity may take private property for public use, the proposed use
must be authorized by law and the taking must be necessary for the
public use. N.D.C.C. §32-15-05." City
of Medora v. Golberg
- June 2005
-- US Supreme Court decided Kelo v. New London addressing public use.
- "the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan’s comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court’s review in such cases, it is appropriate here ... to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifith Amendment."
- A property owner is entitled to be justly compensated (that is, paid the fair market value) for property that is taken.
This statement means:
- The owner must be compensated for all property that is actually taken for the public use.
- A landowner also is compensated for the reduction in value of the owner's remaining property especially if the remaining tract is small and difficult to use because it has been severed (that is, it is now separated) from the owner's other remaining land.
- Landowner, however, are generally NOT compensated for consequential
damages resulting from the public use of the land that has been taken, such as noise and odors from a new road.
- Some states offset
the amount of damages (that is, the amount of payment to the land owner) by the amount that the owner's remaining land increases in value due to the public use; see N.D.C.C. §32-15-22(4). This helps reduce the cost to the public entity that is acquiring the land through eminent domain.
- The public entity
can acquire title or an easement (an easement is the right to use property).
- The public entity has
a duty to negotiate with owner and submit a written offer to the landowner. Rejecting
the offer entitles the public entity to initiate a condemnation proceeding in court.
- A situation where
an individual can exercise eminent domain:
- N.D.C.C. 61-01-04.
"The United States, or any person, corporation, limited liability
company, or association may exercise the right of eminent domain
to acquire for a public use any property or rights existing when
found necessary for the application of water to beneficial uses
There have been situations where government action has "taken" an individual's property but the government did not perceive the action to be a "taking" and therefore had not compensated the property owner. The legal concept of inverse condemnation allows an uncompensated individual whose property rights have been taken to initiate a legal action to demand payment for the "taking."
- Inverse condemnation is a court
proceeding initiated by property owner rather than condemnor -- as the
name implies, the process feels like "it is upside down." Inverse condemnation
is a common law (court-made) remedy.
- Inverse condemnation arises when a public entity engages in an activity which amounts to
a taking of private property without permission of the owner or an effort
by the taking entity to compensate the owner.
- " The purpose of an inverse condemnation action is to allow a landowner
whose private property has been taken for public use to secure
the just compensation which he should have received in proceedings
instituted by the public entity under Chapter 32-15, N.D.C.C.,
prior to the taking or damaging of the property." Arneson
v. City of Fargo, 331 N.W.2d 30 (N.D. 1983).
- The concept of inverse condemnation recognizes that property can be "taken" through possession, interference, and regulation.
- Example of physical interference -- "[the landowners] proceeded on a theory that the Defendants,
through the construction and use of the Sheyenne River Diversion
Project, caused a permanent taking of a flood easement upon the
Arneson farmland entitling the [landowners] to compensation for
the diminution in value of the farmland resulting from that taking."
v. City of Fargo, 331 N.W.2d 30 (N.D. 1983).
- Another example -- regulations that eliminate nearly all economic value, in some situations, have been often considered a "taking."
- Word of caution -- this topic requires consideration of an even more abstract legal idea; that is, a law (e.g., a government regulation) may be a "taking" entitling the property owner to be compensated. For example, a regulation prohibiting me from burying nuclear waste on my land "takes" a "stick from my bundle of rights." Am I entitled to be compensated because the government has "taken" this legal right from me?
- Let's review -- a regulation
imposed through the proper exercise of police power is not a "taking."
- Police power
can be exercised to promote the safety, health and general well-being
of society. Zoning is an example of police power.
- It certainly appears that it is in the public interest to regulate/control where nuclear waste is buried. So that example appears to be a proper exercise of police power not entitling landowners to be compensated.
- Restated, when are regulations
that restrict property rights an exercise of police power and when
do they become a taking that requires compensation or elimination
of the regulation?
- The general answer is "if the regulation leaves the property without economic value, the regulation has gone beyond being a proper exercise of police power and has become a taking that requires the landowner to be compensated.
- When does a property right no longer have an economic
value? When does a regulation that restricts individual liberties
extend beyond "proper exercise of police power?"
- The following US Supreme Court decision offers some ideas on this difficult question.
v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (USSCt)
"In 1986, petitioner Lucas bought two residential lots on a South
Carolina barrier island, intending to build single-family homes such
as those on the immediately adjacent parcels. At that time, Lucas'
lots were not subject to the State's coastal zone building permit
requirements. In 1988, however, the state legislature enacted the
Beachfront Management Act, which barred Lucas from erecting any permanent
habitable structures on his parcels. He filed suit against respondent
state agency, contending that, even though the Act may have been a
lawful exercise of the State's police power, the ban on construction
deprived him of all "economically viable use" of his property, and
therefore effected a "taking" under the Fifth and Fourteenth Amendments
that required the payment of just compensation. See, e.g., Agins v.
Tiburon, 447 U.S. 255, 261. The state trial court agreed, finding
that the ban rendered Lucas' parcels "valueless," and entered an award
exceeding $1.2 million. In reversing, the State Supreme Court held
itself bound, in light of Lucas' failure to attack the Act's validity,
to accept the legislature's "uncontested . . . findings" that new
construction in the coastal zone threatened a valuable public resource.
The court ruled that, under the Mugler v. Kansas, 123 U.S. 623, line
of cases, when a regulation is designed to prevent "harmful or noxious
uses" of property akin to public nuisances, no compensation is owing
under the Takings Clause regardless of the regulation's effect on
the property's value.
"(a) Regulations that deny the property owner all "economically viable
use of his land" constitute one of the discrete categories of regulatory
deprivations that require compensation without the usual case-specific
inquiry into the public interest advanced in support of the restraint.
Although the Court has never set forth the justification for this
categorical rule, the practical -- and economic -- equivalence of
physically appropriating and eliminating all beneficial use of land
counsels its preservation. Pp. 1014-1019 .
- "(c) Rather,
the question [of whether the landowner is to be compensated] must
turn, in accord with this Court's "takings" jurisprudence, on citizens'
historic understandings regarding the content of, and the State's
power over, the "bundle of rights" that they acquire when they take
title to property. Because it is not consistent with the historical
compact embodied in the Takings Clause that title to real estate is
held subject to the State's subsequent decision to eliminate all economically
beneficial use, a regulation having that effect cannot be newly decreed,
and sustained, without compensation's being paid the owner. However, no compensation is owed -- in this setting as with all takings claims
-- if the State's affirmative decree simply makes explicit what already
inheres in the title itself, in the restrictions that background principles
of the State's law of property and nuisance already place upon land
- "(d) Although
it seems unlikely that common law principles would have prevented
the erection of any habitable or productive improvements on Lucas'
land, this state law question must be dealt with on remand. To win
its case, respondent cannot simply proffer the legislature's declaration
that the uses Lucas desires are inconsistent with the public interest,
or the conclusory assertion that they violate a common law maxim such
as sic utere tuo ut alienum non laedas, but must identify background
principles of nuisance and property law that prohibit the uses Lucas
now intends in the property's present circumstances."
- We stated (during
other discussions in this course) that one cannot transfer property
rights they do not own. Note in paragraph (c) of the Lucas syllabus
that the state does not have to compensate you for rights it "took"
before you became owner. Therefore the question becomes "did the state
take the right (that you claim was taken) before you became owner of the land;" if yes, you are not entitled to be compensated for the taking because
you should have accounted for the lack of that right in the price
you paid for the property.
- A regulation
that is determined to be a "taking" must either be eliminated or the
person whose rights have been taken has to be compensated. The agency
that was engaged in the "taking" then has to decide whether to 1)
discontinue its effort to regulate the activity, 2) modify its regulation
so it would no longer be a taking (but instead would be a proper exercise
of police power), or 3) compensate the person whose rights have been
taken. If many people are affected by the "taking," certainly the
cost of compensating the affected persons becomes a consideration
in the agency's decision on how to proceed.
Summary of Key Points
- Property rights transfer by means other than a buy-sell agreement. They also transfer as an inheritance, a gift, through adverse possession and prescription, by escheat, and eminent domain.
- Heirs are identified in the property owner's will or by the intestate succession law if the property owner did not have a will specifying an heir for the property.
- The recipient of a gift must be aware of the gift and begin acting as the owner in order for the gift to be considered complete; that is, the sticks in the bundle of rights have transferred.
- If a property owner does not stop a trespasser, the law may grant the trespasser legal rights in the property if the trespass continues for an extended period of time.
- Property owners must act like the owner to retain their ownership; this includes taking action to remove trespassers.
- If no one else owns the property, the state will assume ownership.
- The law presumes that it is in society's best interest to have our natural resources put to use, that the owner is the individual entitled to use the property, and the law will identify an owner if ownership is not clear; hence the legal concepts of adverse possession and escheat.
- Even though property owners can be required to sell their land for a public purpose, they are entitled to be compensated.
- A government regulation may amount to a "taking" if the regulation has gone beyond "a proper exercise of police power."
December 12, 2010