Rights in real property - Protection of pre-existing propert...

Learning Outcomes

This article explains how pre-existing property rights in real property are created, protected, and lost, including:

• Identifying the elements of adverse possession, how they operate to terminate an owner’s pre-existing title, and how tacking, disabilities, and government ownership affect exam hypos.
• Distinguishing between physical, regulatory, and exaction-based takings and predicting when governmental action crosses the line into a compensable taking.
• Evaluating how the Takings Clause, Due Process, and the Contracts Clause together limit state efforts to reshape vested interests such as easements, leaseholds, and long-term contracts.
• Analyzing how zoning ordinances treat existing lawful uses, nonconforming uses, and vested rights, and when amortization or forced cessation becomes unconstitutional.
• Comparing valid exercises of the police power with unconstitutional or compensable interference, using common MBE fact patterns involving downzoning, permit denials, or access requirements.
• Developing a structured approach to MBE questions that tests pre-existing rights, enabling you to spot key facts, select the governing doctrine, and eliminate distractor answers efficiently under time pressure.

MBE Syllabus

For the MBE, you are required to understand how the law protects pre-existing property rights against private and governmental interference, with a focus on the following syllabus points:

• Acquisition of title by adverse possession and the effect on prior owners and other pre-existing interests.
• The Takings Clause: physical versus regulatory takings, including partial, temporary, and exaction-based takings.
• The distinction between valid exercises of the police power (e.g., zoning) and compensable takings or due process violations.
• Constitutional limits on retroactive alteration of vested rights (e.g., easements, long-term leases, nonconforming uses).
• The status of nonconforming uses and vested rights under new zoning ordinances.
• Remedies available to property owners whose vested interests are infringed or effectively destroyed.

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.

1. Which of the following is most likely to constitute a compensable taking under the Constitution?
   1. A city rezones land, reducing its value by 20%.
   2. A state requires all landowners to allow a public footpath across their property.
   3. A county increases property taxes for all owners.
   4. A city delays issuing a building permit for six months.
2. Which statement about adverse possession is correct?
   1. The possessor must have the true owner's consent.
   2. Payment of property taxes is always required.
   3. The possessor must occupy the land openly and continuously for the statutory period.
   4. The possessor must prove good faith belief in ownership.
3. A state passes a law retroactively voiding all private easements. What is the strongest constitutional objection?
   1. Equal Protection Clause.
   2. Takings Clause.
   3. Privileges and Immunities Clause.
   4. Dormant Commerce Clause.
4. A city downzones an industrial parcel to residential use only. The owner has been operating a lawful factory on the land for 20 years. Under typical zoning doctrine, which is most accurate?
   1. The factory use must stop immediately with no compensation.
   2. The factory use may usually continue as a protected nonconforming use.
   3. The city’s action is automatically a compensable taking.
   4. The owner loses all rights because zoning always overrides prior uses.

Introduction

Pre-existing property rights are protected by a combination of common law doctrines and constitutional guarantees. Owners are shielded from arbitrary loss of their interests, whether by private parties or government action. However, the law also promotes active, productive use of land and allows government to regulate for health, safety, and welfare.

These competing values produce several central doctrines for the MBE:

• Adverse possession allows a non-owner to acquire title by long, hostile possession, thereby extinguishing the prior owner’s rights.
• The Takings Clause prevents government from forcing certain sacrifices by particular owners for public benefit without just compensation.
• Due Process, the Contracts Clause, and zoning doctrines limit how far the state can go in retroactively destroying vested property interests.

Understanding when regulation is simply a valid adjustment of rights and when it crosses the line into a compensable or unconstitutional interference is a recurring MBE theme.

Key Term: Pre-existing Property Right
A legally recognized interest in real property that has already vested in an owner (e.g., title, leasehold, easement), which is protected against later interference or deprivation.

Protection Against Private Interference: Adverse Possession

Adverse possession allows a non-owner to acquire title to land if certain conditions are met for the statutory period. This doctrine balances the interests of diligent owners against those who neglect their property and promotes certainty in land titles.

Key Term: Adverse Possession
Acquisition of title to land by another’s continuous, open, notorious, exclusive, and hostile possession for the statutory period, thereby extinguishing the prior owner’s rights.

Elements of Adverse Possession and Their Effect on Existing Rights

On the MBE, you should associate adverse possession with four core elements (plus any statutory extras, like tax payment):

• Actual possession: The possessor must physically use the land as a typical owner would, given the nature of the land (e.g., farming, building, fencing, maintaining).
• Open and notorious: Use must be visible and obvious enough to put a reasonable true owner on notice that someone is asserting a claim.
• Exclusive: The possessor must exclude the true owner and the general public; shared use with the owner is usually inconsistent with exclusivity.
• Continuous: Possession must continue without significant interruption for the full statutory period (often 10–20 years in MBE questions), in a manner consistent with the type of land (e.g., seasonal use may suffice for a vacation property).
• Hostile: Possession must be without the true owner’s consent. The possessor need not be angry; “hostile” simply means non-permissive.

Some jurisdictions also require:

• Claim of right or color of title: A claim of right is a bare assertion of ownership. Color of title involves possession under a defective deed or instrument.
• Payment of taxes: A minority of states require the adverse possessor to pay property taxes.

If these requirements are met for the statutory period, the original owner’s rights are extinguished, and the possessor gains legal title. Importantly:

• Title acquired by adverse possession is not automatically “marketable” for sale purposes until quieted by court decree, but it is legally valid as between the parties.
• Adverse possession cuts off pre-existing property rights in the land, including the record owner’s title. It may also extinguish certain servitudes if the possessor’s use is inconsistent with them.

Exam point: Government land generally cannot be acquired by adverse possession. If the fact pattern involves a public park or federal/state land, adverse possession is almost always unavailable.

Permission Destroys Hostility

Hostility is often the key contested element:

• If the true owner grants permission (e.g., “You can use my path”), the use is not hostile, and the statutory clock does not run.
• A use that starts with permission must clearly change to a non-permissive claim (e.g., explicit repudiation) before adverse possession can begin.

This is frequently tested through neighborly conduct: if an owner is aware of the use and affirmatively approves it, there is no hostility.

Tacking and Disabilities

• Tacking: Successive adverse possessors can add their possession periods together to reach the statutory period if they are in privity (e.g., by deed, will, or inheritance). A trespasser handing off to another trespasser with no legal relationship usually cannot tack.
• Disabilities: If the true owner is under a legal disability (minority, insanity, incarceration) at the time adverse possession begins, the statutory period is tolled until the disability ends. Disabilities arising later do not restart or pause the clock.

Effect on Other Interests

Adverse possession affects different pre-existing rights in distinct ways:

• Record owner’s fee simple: Extinguished when the adverse possessor completes the statutory period.
• Future interests: The statute does not run against future interest holders until their interests become possessory (e.g., remainderman after life tenant’s death).
• Mortgages and liens: Adverse possession generally does not eliminate properly recorded mortgages unless the adverse possessor’s title is quieted and the mortgagee’s rights are separately barred by statute of limitations.
• Easements: A possessor who acts in a manner inconsistent with an easement (e.g., fencing off a right-of-way) may eventually extinguish it by prescription; conversely, an easement can itself be gained by prescription.

Worked Example 1.1

A owns a vacant lot but does not visit or maintain it. B builds a fence and uses the entire lot as her own (parking equipment, storing materials) for 15 continuous years. The jurisdiction has a 10-year adverse possession statute. A learns of this and sues to eject B.

Answer:
B will prevail. B’s actual, open, notorious, exclusive, and hostile possession of the lot for more than the statutory period extinguished A’s pre-existing title. A’s failure to act, despite constructive notice of B’s obvious use, allows B to acquire title by adverse possession.

Hostility and Neighborly Tolerance

Consider how owner acquiescence affects hostility:

Worked Example 1.2

W and M own adjacent farms. For 30 years W planted crops on 10 acres of M’s land. M knew this, walked through the crops weekly, and enjoyed them, never objecting. The jurisdictions’s adverse possession period is 20 years. After W dies, her son claims ownership of the 10 acres by adverse possession and sues to quiet title; M counters.

Answer:
M will likely win. Because M knowingly allowed W’s use and enjoyed the crops, a court will treat W’s possession as permissive, not hostile. Without hostility, W never acquired title by adverse possession, so there is no title for the son to “inherit” or tack.

This pattern reflects a classic MBE trap: long-term use alone is not enough; the possessor’s use must be non-permissive.

Protection Against Government Interference: The Takings Clause

The Fifth Amendment (as applied to the states through the Fourteenth) bars government from taking private property for public use without just compensation. This protects existing property interests against certain types of governmental interference.

Key Term: Takings Clause
The constitutional provision that prohibits government from taking private property for public use without paying just compensation.

Government often regulates property under the police power (e.g., zoning, safety codes). Most regulation is valid without compensation. A “taking” arises only when governmental action goes far enough to effectively appropriate or destroy property rights.

Physical and Regulatory Takings

Key Term: Physical Taking
A taking that occurs when the government (or someone authorized by it) permanently appropriates, occupies, or authorizes a physical invasion of private property.

Key Term: Regulatory Taking
A taking that occurs when a regulation restricts the use of property so severely that it is the functional equivalent of a physical appropriation, typically by denying all economically viable use.

On the MBE, distinguish:

• Per se physical takings (almost always require compensation):
  • Government permanently occupies property (even a small portion, such as a cable box bolted to a building).
  • Government authorizes the public to physically cross or use private land (e.g., mandated public pathway).
• Total regulatory takings:
  • A regulation deprives the owner of all economically viable use of the land (e.g., a building ban that leaves land valueless).
• Partial regulatory takings:
  • Regulation reduces value but does not wipe it out. Courts apply a multi-factor analysis (Penn Central-style), focusing on:
    • Economic impact.
    • Interference with reasonable investment-backed expectations.
    • Character of the regulation (e.g., broadly applicable plan vs targeted burden).

Most MBE questions will give you either a clear physical invasion or a near-total destruction of use. Moderate decreases in value, even 50–80%, are usually not takings.

Exam Warning

State regulations that merely reduce property value—even substantially—are not usually takings. Only when a regulation deprives the owner of all economically viable use of the property, or when there is a permanent physical occupation or forced access, is a compensable taking likely.

Exactions and Unconstitutional Conditions

Local governments frequently condition development approvals (e.g., building permits, rezonings) on landowner concessions, such as:

• Dedicating land for streets, parks, or public access; or
• Paying impact fees.

These exactions are valid only if:

• There is an essential nexus between the exaction and a legitimate public interest; and
• The exaction is roughly proportional to the development’s impact.

Exactions lacking nexus or proportionality are treated as takings unless compensation is paid.

Public Use and Just Compensation

• Public use is interpreted broadly: any taking that is rationally related to a conceivable public purpose (economic development, infrastructure, environmental protection) satisfies the requirement.
• Just compensation is generally the fair market value of the property at the time of the taking, measured by the owner’s loss, not the government’s gain.

Worked Example 1.3

A city enacts a law prohibiting all construction on a parcel of land to preserve habitat for an endangered species. The law leaves the parcel with no economically viable use. The owner sues, seeking compensation.

Answer:
The owner is entitled to compensation. By denying all economically viable use of the land, the regulation is a total regulatory taking. Under the Takings Clause, the city must either relax the restriction or pay just compensation.

Physical Access Requirements

Compare a public access requirement with ordinary inspections:

• A law requiring landowners to allow public access through their land (e.g., a mandated hiking trail) is a physical taking.
• A law requiring occasional entry by government inspectors (e.g., health or building inspectors) is ordinarily a valid exercise of the police power and not a taking.

This distinction often drives the correct MBE answer among close choices.

Temporary and Partial Restrictions

Temporary moratoria (e.g., a 6–12-month halt on building permits while a comprehensive plan is studied) are usually analyzed under partial regulatory taking principles. The shorter and more broadly applied the restriction, the less likely a taking will be found.

Revision Tip

Always classify the government action first:

• Is it a physical appropriation or invasion?
• Does it deny all economically viable use?
• Or is it merely a general regulation that reduces value?
  Only the first two categories are strong candidates for a compensable taking on the MBE.

Limits on State Power to Alter Vested Rights

States cannot simply erase vested private property rights by legislative fiat. Several constitutional doctrines work together here: the Takings Clause, Due Process, and the Contracts Clause.

Key Term: Vested Property Right
A property interest that has become fixed—such as an existing easement, leasehold, or lawful nonconforming use—and cannot be destroyed without due process and, often, compensation.

Key Term: Contracts Clause
The constitutional provision that limits state laws substantially impairing existing contracts, including long-term leases and other ongoing property agreements, unless reasonably and appropriately tailored to serve an important public purpose.

Retroactive Destruction of Easements and Other Servitudes

Easements, covenants, and profits are classic examples of vested property rights. A state law that retroactively abolishes such interests—especially without compensation—is constitutionally suspect.

Worked Example 1.4

A state passes a law retroactively abolishing all private easements, including recorded rights-of-way long relied upon by landlocked owners.

Answer:
The law likely violates the Takings Clause and the Due Process Clause. Existing easements are vested property rights. Destroying them outright—without compensation—constitutes a taking, and doing so retroactively also raises serious substantive due process concerns. The Contracts Clause may provide an additional argument where the easements are part of ongoing contractual arrangements.

Zoning and Nonconforming Uses

Zoning is a common way states and localities regulate land use. While zoning ordinances often change allowable uses, pre-existing lawful uses are typically protected.

Key Term: Nonconforming Use
A use of land that was lawful when established but no longer conforms to a new zoning ordinance. The use is usually allowed to continue despite the change.

Key points:

• A lawful use that pre-dates a restrictive zoning change generally becomes a protected nonconforming use.
• The owner usually has a vested right to continue that use; immediate termination without compensation can raise takings and due process issues.
• Many jurisdictions allow reasonable “amortization” periods, giving owners time to wind down certain nonconforming uses (e.g., billboards, junkyards) without compensation, so long as the period is fair.

Worked Example 1.5

A city rezones an area from industrial to residential. A factory has lawfully operated on a parcel in that area for decades. The ordinance is silent about existing uses. The city orders the factory to cease operations immediately.

Answer:
The factory owner has a strong argument that the city’s action unlawfully interferes with a vested nonconforming use. Under typical zoning doctrine, the pre-existing lawful use is protected and may continue. Immediate termination without compensation is likely invalid, and in extreme cases could be treated as a taking.

Contracts Clause and Long-Term Property Contracts

Long-term leases, mortgages, and other ongoing property contracts create vested expectations. The Contracts Clause restricts states from substantially impairing these contracts unless:

• The law serves a significant and legitimate public purpose; and
• The impairment is reasonable and appropriately tailored to that purpose.

Examples that may violate the Contracts Clause:

• A state statute retroactively voiding all 99-year ground leases.
• A law eliminating landlords’ rights to recover unpaid rent already accrued.

These measures might also be analyzed as takings if they effectively destroy valuable contractual rights associated with property.

Takings Versus Due Process

Sometimes an owner argues not that there was a “taking,” but that the regulation is so arbitrary that it violates substantive due process:

• A taking focuses on compensation: even a valid public-purpose action may require payment.
• Substantive due process focuses on rationality: whether the regulation is arbitrary or irrational.

On the MBE, when a regulation targets a specific owner or destroys core property rights retroactively, both takings and due process arguments may be in play. The best answer will usually track the doctrine most squarely implicated by the facts (e.g., Takings Clause for outright destruction of easements).

Key Point Checklist

This article has covered the following key knowledge points:

• Adverse possession can extinguish an owner’s pre-existing title if actual, open, notorious, exclusive, hostile, and continuous possession continues for the statutory period.
• Permission from the true owner destroys hostility; neighborly tolerance often defeats adverse possession.
• Adverse possession does not generally run against government land and runs against future interests only when they become possessory.
• The Takings Clause protects existing property interests from per se physical takings and regulations that deny all economically viable use.
• Most land-use regulations that merely reduce property value—even substantially—are valid exercises of the police power and do not require compensation.
• Exactions attached to land-use approvals must have an essential nexus and rough proportionality to the project’s impact, or they may be treated as takings.
• States cannot retroactively destroy vested property rights (such as easements and lawful nonconforming uses) without raising serious Takings and Due Process concerns.
• Existing lawful uses commonly become protected nonconforming uses when zoning changes; forced immediate cessation can be invalid or compensable.
• The Contracts Clause limits state interference with long-term property contracts; significant impairments must be justified and appropriately tailored.

Key Terms and Concepts

• Pre-existing Property Right
• Adverse Possession
• Takings Clause
• Physical Taking
• Regulatory Taking
• Vested Property Right
• Nonconforming Use
• Contracts Clause