Tuesday, April 19, 2016

5 Things to Remember About Adverse Possession

Adverse possession is one of those topics that seems to pop up quite a lot on the MBE. There are many different angles to test, and if you work through enough practice questions, you'll see them all. Here are five points that I'd remember on this topic as you prepare for the exam:

(1): Assume that co-tenants own property. Possession by one co-tenant is usually not adverse to his/her co tenants because each co-tenant has the right to possess all of the property. And because the requirement for hostile possession will therefore not be satisfied, a co-tenant will generally not gain ownership rights to another co-tenant's property through adverse possession.

(2): Assume now that y has ownership in real property but the ownership rights amount to a future interest in the property. If x attempts to adversely possess that property, the statute of limitations will not begin to run against y until y's future interest becomes a present possessory estate.

(3): What if an adverse possessor uses the land in violation of a restrictive covenant in the owner's deed. In such an instance, the adverse possessor takes the property free of the restriction (kind of counter-intuitive so worth noting).

(4): Title to government-owned land and land registered under a Torrens system cannot be acquired by adverse possession.

(5): The statute of limitations triggered by adverse possession will not begin to run if the true owner of the property was under some disability to sue when the cause of action first accrued (when the adverse possessor first took possession). The only disability that is relevant here is the disability of the owner of the property, and that disability must exist at the time that the cause of action arose.

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