Adverse possession - Next Generation Bar Exam
- What is constructive adverse possession under color of title?
- Actual possession of part of a tract under a defective deed extends possession to the whole tract described. The doctrine generally does not reach land held by another owner in actual possession.
- What is the effect of the true owner's permission on an adverse possession claim?
- It defeats the hostility element. Permissive possession, such as by a tenant or licensee, is not adverse.
- What creates privity between successive adverse possessors for tacking?
- A voluntary transfer of possession, such as by deed, will, or inheritance. An ouster of one possessor by another breaks privity.
- What is the effect of a cotenant's sole possession on adverse possession against the other cotenants?
- It is not adverse unless the possessing cotenant ousts the others. Each cotenant has a right to possess the whole, so sole possession alone is not hostile.
- What does the open and notorious element of adverse possession require?
- Possession visible enough to put a reasonably attentive owner on notice. The owner need not have actual knowledge of the possession.
- Under the majority objective view, what does the hostility element of adverse possession require?
- Possession without the true owner's permission, regardless of the possessor's state of mind. A minority of jurisdictions consider whether the possessor acted in good faith or with intent to claim.
- Against whom does adverse possession run when land is subject to a life estate?
- Only the life tenant, not the holder of the future interest. The remainderman's cause of action does not accrue until the life estate ends.
- What is the effect of the true owner's disability at the time adverse possession begins?
- It tolls the statutory period, as provided by the jurisdiction's statute. Disabilities arising after possession begins do not toll the period.
- What is tacking in adverse possession?
- Combining successive possessors' periods of possession to satisfy the statutory period. Tacking requires privity between the successive possessors.
- What elements must an adverse possessor establish to acquire title?
- Actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period. Some jurisdictions also require payment of property taxes or color of title.
- A possessor fenced and farmed a neighbor's vacant lot each summer for the statutory period, as similar owners in the area do. What is the status of the continuity element?
- It is satisfied, because seasonal use consistent with the land's ordinary use is continuous. Continuity is measured by how an ordinary owner would use similar land.
- What is the status of government land under adverse possession?
- It generally cannot be acquired, because statutes protect public land from adverse claims. The principle is expressed as nullum tempus occurrit regi, time does not run against the sovereign.
- A possessor occupied land for 7 of the required 10 years, then sold the property by deed to a buyer who occupied it for 3 more. What is the status of the buyer's claim?
- The buyer has acquired title by tacking. The deed creates privity, so the periods combine to satisfy the statutory period.