Friday, July 5, 2013

Adverse Possesion (Disabilities)

Adverse possession is essentially the tolling of the statute of limitations in an action for trespass. When the elements of adverse possession have been satisfied, the true owner of the property has an obligation to bring an action in trespass against the trespasser, and he can do so within the time provided by the statute of limitations which coincides with the statutory period for adverse possession.

A common question on the MBE presents a situation in which the true owner of the property is under some disability at the time the adverse possessor first possesses the property. The rule to note is that the statute of limitations does not begin to run if the true owner is under a disability (for example if the true owner is a minor) at the time that the cause of action accrues (when the adverse possessor trespasses upon the land). But watch carefully for questions in which the disability occurs at some time after the trespass occurs, as the statute will continue to run under such circumstances.

So, assume that x adversely possesses the property owned by y in the year 2003. In 2010, y is adjudicated insane (a valid disability). If x from the year 2003 continues to satisfy the elements of adverse possession, assuming the relevant period is 20 years, x will gain title by adverse possession in the year 2023. However, if y had already been adjudicated insane in the year 2003 when the cause of action accrued, the statute would have been tolled, and would not begin to run against y until that disability no longer existed, if ever.

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