09 August 2013

Bar Prep: Property #1

This is one in a series of posts designed to give you some insight into the questions that one might see on the bar exam, and how one might go about answering them. For similar posts, click here.

QUESTION: Che and Cedric own adjoining pieces of land in a rural community, but the boundary line between the 2 properties was never clearly marked. Twenty-five years ago Che dug a well on a piece of the property that he believed to be his. He has used the well continuously since then and has taken care of the area surrounding it. Fifteen years ago, Cedric was defined as mentally ill and found incompetent. He died today and the executor of his estate filed suit to throw Che off the land with the well. The adverse possession requirement is 20 years. Which best summarizes the status of the well property?

A. Che has acquired title by adverse possession.

B. Che cannot claim title as an adverse possessor since he never entered with hostile intent.

C. Che is in adverse possession but does not hold title, since Cedric's incompetence 15 year ago stopped the possession clock from running.

D. None of the above
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ANSWER: A. This is a simple adverse possession case. Che had title due to his open, exclusive, continuous, and hostile use for a period longer then the statute. Since Cedric did nothing to eject Che during the running period of the statute, title to the property vests in the possessor, and the owner is barred from suing for ejectment. An adverse possession claim requires: 1) open and notorious use, 2) actual and exclusive use, 3) continuous use throughout the statutory period and 4) the possessor must occupy the property and enter without the owner's permission. Here, Che has met all of these requirements.

B is incorrect. Hostile intent merely requires a possessor to take possession of the land without permission of the true initial owner, which results in a loss of Cedric's rights.

C is incorrect. The only time in which the statute of limitations for adverse possession would be tolled is if the true initial owner is mentally incompetent when the possessor initially takes the land. Here, Cedric's mental illness occurred years after Che initially took possession.

D is incorrect in light of the correct answer. Answer A clearly and accurately states that Che has taken right and title by adverse possession.

LEARNING POINT: In adverse possession, land is acquired through open, notorious, exclusive, hostile, continuous occupation for the applicable statute of limitations.
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