Sunday, January 6, 2013

MBE Fast Fact: Adverse Possession

The analysis required for an issue concerning adverse possession requires determining whether the true owner of the property is under some disability to sue when the cause of action for trespass first accrued (for example, if the true owner is a minor, or is imprisoned, or has been adjudicated insane). In such a situation, the statute begins to run once that disability is no longer in effect. In addition, the statute of limitations does not begin to run against the holder of a future interest, until that interest becomes possessory. Finally, note that title to government-owned land cannot be acquired by adverse possession.

It's important to determine whether any of the disabilities mentioned above were present when the cause of action first accrued. If, rather, the disability comes about after the cause of action accrued, then the statute will continue to run, and provided the possessor remains in possession for the statutory period, the possessor will gain title by adverse possession notwithstanding the disability of the true owner. Therefore, disabilities of successors in interest or subsequent additional disabilities of the owner have no effect on tolling the statute.

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