Adverse Possession on the UBE - Elements and Explanation for the MBE and MEE

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             So, what exactly is adverse possession (hereinafter “AP”)?   AP is possession of land for a statutorily prescribed period of time that CAN, if certain elements are met, ripen into title of that land.  Each jurisdiction decides how long a property owner has, after a wrongful possessor enters his or her property, to bring an action to evict the wrongful possessor.  If a wrongful possessor enters a property, and the true owner fails to take legal action against the wrongful possessor within the prescribed period of time, then the possessor actually gains title to the property. Once this happens, the possessor, though he or she had no legal right to enter the property, gains full and exclusive possession and ownership of the property in fee simple absolute. The original “true” owner’s right to the property is permanently extinguished.

 On its face, this does not seem like such a difficult area of law, yet for one reason or another, many tend to struggle with AP questions on the MBE as well as on the MEE.

 BAR EXAM NOTE – As we will see below, it is prudent to not only think of the four elements of AP when attacking an MBE question, but also to be mindful of tacking and/or whether a disability is in play.  This is one of the common reasons why people get an AP question wrong.   Let us dive a bit deeper into the elements of AP. 

Elements of AP: (COAH) -

o   C – Continuous – uninterrupted for the statutory period of time;

 

o   O – Open and Notorious -  which means the sort of possession a usual owner would take under the circumstances and is NOT hidden.  For the adverse possession to be effective, it must be done in a manner that is visible to everyone. In other words, the possession must be done in such a manner that the actual owner would notice the possession if he or she bothered to look;

 

o   A – Actual Use - meaning that the entry must be LITERAL (no hypothetical entry).  For this element to be satisfied, the adverse possessor must enter and reside on, or use the land for the entire duration of the adverse possession period. In addition, the possessor must occupy the land to the exclusion of the true owner. Possession that is shared with the true owner is not “adverse” to the true owner and is thus not adverse possession. and;

 

o   H – Hostile - meaning that the possessor does not have true owners consent to be there.  It should be noted that the possessors SUBJECTIVE st of mind is IRRELEVANT here.  This element requires that the possessor must enter and possess the property without the owner’s consent and that the possessor must possess the property with the intent of remaining on the property permanently. It does not require that the possessor actually claim that he or she has a legal right to possess the property. It is enough that the possessor intends to remain on the property in perpetuity.


BAR EXAM NOTE:  Keep in mind the following three circumstances as the examiners love to test this as nuance for the element of hostility. 

 1 - A tenant cannot claim adverse possession against his or her landlord because, by definition, the lease allows that tenant to live on the premises. Therefore, the possession is not hostile. The same is true for co-tenants. Since each co-tenant has a right to possess the entire property, possession by a single tenant is not considered to be hostile.

 2 - An occupier cannot adversely possess property if he or she has permission from the "true owner" to occupy the property.

 3 - An adverse possession is ineffective if the possessor verbally (or otherwise) concedes the fact that the owner is the “real” owner of the property and that he or she is just the possessor. In such a case, the possession is not considered to be hostile.

 Tacking -

And what about the concept of tacking?  How does that play a role in/with the subject of AP?

 One AP’er may tack on to his time with the land using his predecessors time SO LONG AS there is privity which is satisfied by ANY non hostile nexus. Some examples would be a blood relative OR via a contract or deed or a will.  All are permissible.

BAR EXAM NOTE – Tacking is NOT allowed when there has been an OUSTER.  This is a heavily tested AP nuance, and it confuses myriad examinees.

Disabilities -  

Lastly, what about the concept of disabilities?  How does that factor in? The statute of limitations will NOT run against a true owner who is afflicted by a disability AT THE START of the AP.  However, if they are afflicted DURING THE TIME OF AP? This will not apply. Some common disabilities include insanity, infancy, and/or imprisonment.

Conclusion

  It is extremely important to understand the elements of AP, as well as when tacking and a potential disability comes into play.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on an AP MEE issue depends on your knowledge of the law. For more information concerning this section of Property Law, another area of Property Law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com


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