Also known as: possessory estate · possessory interest · possessory interests · present estates · estates in possession
Written by attorneys — see sources below.
Present interests in land that entitle the holder to immediate possession. The classification turns on the duration and conditions attached to the right of possession rather than on future interests that may follow.
Perry Pratt conveyed a warehouse to Paul Peterson for a five-year term that ended on June 1. After the term expired Peterson remained in possession without asserting any new claim of title. The continued occupancy created an estate at sufferance because Peterson had originally entered under a valid conveyance yet stayed after that interest ended.
Patricia Patel granted Priscilla Parks permission to store equipment on a corner of her lot. Patel later sold the lot to Pedro Pacheco. The sale terminated Parks's possessory interest and ended the license because the new owner held the full possessory estate free of the prior consent.
The United States conveyed land to a railroad subject to a right-of-way that later reverted when rail service ended. The Brandt Trust claimed the strip as a fee simple possessory estate while the government asserted a mere easement. Resolution turned on whether the original grant created a present possessory interest or a limited future interest.
In 1908 the Laramie, Hahn's Peak and Pacific Railroad obtained a 200-foot-wide right of way across public lands in Wyoming under the General Railroad Right-of-Way Act of 1875. The railroad completed construction of its line in 1911. The line later passed through several owners and was used primarily to transport timber and cattle. In 1976 the United States issued a land patent conveying an 83-acre parcel in Fox Park, Wyoming, to Melvin and Lulu Brandt. The patent conveyed to the Brandts fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever." The patent stated that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific Railway Company, its successors or assigns." The right of way crossed approximately ten acres of the patented parcel. In 1996 the Wyoming and Colorado Railroad notified the Surface Transportation Board of its intent to abandon the right of way. After removing the tracks and ties and obtaining Board approval, the railroad completed abandonment in 2004. In 2006 the United States filed suit seeking a judicial declaration of abandonment and an order quieting title to the right of way in the Government. The complaint named the owners of 31 parcels crossed by the abandoned right of way, including Marvin Brandt who held the Fox Park parcel through a family trust. Brandt contested the claim and filed a counterclaim asserting that the right of way was a mere easement extinguished by abandonment. The district court granted summary judgment to the United States. The Court of Appeals for the Tenth Circuit affirmed. The Supreme Court granted certiorari.
View caseCompuServe allowed Cyber Promotions to send messages through its servers under a prior agreement. After the agreement terminated Cyber Promotions continued sending messages. The court treated the continued access as an interference with CompuServe's possessory interest in its servers.
CompuServe Incorporated operates one of the major national commercial online computer services through a proprietary nationwide computer network that provides subscribers with access to its content and a link to the Internet for exchanging electronic mail. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. Over the past several months, CompuServe received many complaints from subscribers threatening to discontinue their subscriptions unless the company prohibited electronic mass mailers from using its equipment. In or around October 1995, CompuServe employee Jon Schmidt specifically told Sanford Wallace that he was prohibited from using CompuServe's equipment to send junk e-mail messages. CompuServe later posted an online policy statement declaring that it does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail. Despite the notification, defendants sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe attempted to block the messages with software programs, but defendants modified their equipment and messages to circumvent the screening by falsifying the point-of-origin information in the headers, removing sender information, and configuring their servers to conceal their true domain name. CompuServe submitted affidavits from software developer Michael Mangino on the burden to its equipment, customer service manager Patrick Hole on receiving approximately 9,970 e-mail complaints in November 1996, and others documenting the evasion tactics. On October 24, 1996, the court issued a temporary restraining order, and following a hearing on December 15, 1996, the court considered CompuServe's application for a preliminary injunction to extend the order and enjoin defendants from sending any unsolicited advertisements to CompuServe subscribers.
View caseTwo brothers held a ranch as joint tenants with right of survivorship. One brother conveyed his interest to a third party. The conveyance converted the estate into a tenancy in common and destroyed the survivorship feature because each now held a distinct possessory estate.
Raymond Johnson and plaintiff Hazel Tenhet owned a parcel of property as joint tenants. The deed was executed by Jettie N. Johnson to them as joint tenants. The property consisted of a dwelling house and lot. Its value did not exceed three thousand five hundred dollars at the time of Johnson's death in 1971. Assertedly without plaintiff's knowledge or consent, Johnson leased the property to defendant Boswell. The lease was for a period of ten years at a rental of one hundred fifty dollars per year. It included a provision granting the lessee an option to purchase. Johnson died some three months after execution of the lease. Plaintiff sought to establish her sole right to possession of the property as the surviving joint tenant. After an unsuccessful demand upon defendant to vacate the premises, plaintiff brought this action to have the lease declared invalid. The third amended complaint contained five causes of action. The trial court granted a motion to strike the fourth and fifth causes of action. It sustained demurrers to the second and third causes without leave to amend. But the court made no express ruling on the first cause of action seeking declaratory relief and damages. The trial court sustained demurrers to the complaint and entered a judgment of dismissal. Plaintiff appealed from the ensuing judgment of dismissal to the Supreme Court of California.
View caseA cooperative sprayed pesticides that drifted onto neighboring fields owned by Johnson. The court examined whether the chemical particles constituted an invasion of Johnson's possessory interest in the surface and subsurface of the land.
Oluf and Debra Johnson are organic farmers in central Minnesota whose fields are certified under the National Organic Program. Paynesville Farmers Union Cooperative Oil Company is a member-owned provider that applies pesticides to conventional farm fields adjacent to the Johnsons' property. In June 2007 the Johnsons filed a complaint with the Minnesota Department of Agriculture alleging pesticide drift onto one of their transitional soybean fields. On June 15, 2007, winds of 9 to 21 miles per hour carried Status (diflufenzopyr and dicamba) and Roundup Original (glyphosate) from the Cooperative's spraying of a neighboring conventional field onto the Johnsons' soybeans. MDA testing detected dicamba below detection levels but no diflufenzopyr or glyphosate. The MDA nevertheless directed the Johnsons to plow down approximately 10 acres of the crop because of visual damage and the presence of dicamba. The Johnsons also notified their certifying agent, the Organic Crop Improvement Association. An August 27, 2007 OCIA letter stated that chemical drift may have occurred and that, if contamination were confirmed, the field would have to return to the beginning of the 36-month transition period. The Johnsons therefore restarted the three-year transition for that soybean field. In July 2008 the Johnsons reported a second incident in which Roundup Power Max and Select Max (glyphosate and clethodim) drifted onto a transitional alfalfa field. MDA testing found minimal glyphosate. On August 1, 2008, they reported a third incident involving Lorsban Advanced (chlorpyrifos) on the same alfalfa field. Testing again showed minimal residue. The MDA concluded that drift from the Cooperative's applications caused both positive results. The Johnsons took the alfalfa field out of organic production for an additional three years. The Johnsons sued the Cooperative for trespass, nuisance, negligence per se, and battery, claiming economic losses from the three-year transition periods, destruction of the soybean crop, increased weeding and reporting burdens, and adverse health effects to Oluf Johnson. They also sought a permanent injunction barring spraying within a half mile of their fields. The district court granted summary judgment to the Cooperative on all claims and denied the Johnsons' motion to amend the complaint to add the 2008 incidents. The court of appeals reversed in part. The Minnesota Supreme Court granted the Cooperative's petition for review.
View caseA possessory estate gives the holder the present right to occupy or control the land. A future interest postpones that right until a later event occurs. The distinction controls remedies such as ejectment and waste claims.
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Yes. The holder enjoys immediate possession even though the estate may end automatically upon a stated event. Partition rights and waste liability attach because the interest is presently possessory.
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No. A license is a revocable privilege that does not transfer any estate in the land. Only a conveyance or adverse possession can create a possessory estate.
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…to which Teleprompter's cable and hardware attach. Under modern landlord-tenant law, a residential tenancy is not merely a possessory interest in specified space, but also a contract for the provision of a package of services and facilities necessary and appurtenant to that space. See R. Schoshinski, American Law of Landlord and…