When I work with students on essay writing, as part of that program I provide students with my own answers to any essays I assign. I'm going to provide those answers here on the blog as well. Note that the questions will need to be purchased directly from the NCBE @ https://store.ncbex.org/mee-bar-exam-value-pack/. Included here are answers I've written to those previously administered essays.
February 2015: Real Property
An initial issue is whether the acts by the man, the sister, and the buyer were sufficient to allow them to acquire title by adverse possession to the ½ acre tract that they possessed. There are a variety of factors required to acquire title by adverse possession. The possession must be exclusive, actual, open and notorious, hostile, and must be continuous for at least the statutory period. To be actual, the possession must be consistent with how a property owner would use the land. Open and notorious requires that the acts would put a reasonable person on notice that the property has been possessed by another. To be hostile generally requires that the possessor is possessing the property without the owner’s permission. To be continuous, periods of possession can be aggregated provided that those aggregating their periods of possession are in privity with each other. Privity requires that there is a relationship among the possessors arising due to transfer, descent, bequest, etc.
The facts state that the possession was exclusive. In addition, we are told that the possession included acts such as building and occupying a cabin as well as planting, harvesting, and maintaining a garden. Such acts are consistent with how a property owner would generally use the property. Further, the cabin and garden would have been very noticeable to a reasonable person. Not only were they visible, but when the owner previously acquired the land, it had been vacant. It is no longer vacant, and this is something that would have been easily ascertainable when viewing the property. There is no indication that the property was possessed with the consent of the owner; rather, the facts indicate otherwise. There is a question as to whether the property was possessed continuously for the statutory period since neither the man, the sister, nor the buyer possessed for the full 10 years. The man and the sister, however, were in privity due to testamentary succession. The sister and the buyer were likewise in privity due to voluntary transfer.
The elements of adverse possession appear to have been satisfied since the possession seems to have been exclusive, actual, open, notorious, and hostile. In addition, because there was privity between the man, the sister, and the buyer, they can tack on the time they possessed to satisfy the requirement that possession is continuous for the statutory period. Because all elements appear to have been satisfied, it is likely that the man, the sister, and the buyer combined to acquire title by adverse possession and since the buyer is currently in possession, the buyer likely has title by adverse possession to the ½ acre tract.
Next, it should be determined whether the buyer has acquired title to the other unpossessed 2 ½ acres of property. Constructive adverse possession provides that if a possessor begins to adversely possess property under color of title then even if the possessor possesses only a portion of the land, the possession will constructively extend to possession of all the land. Color of title requires that the possessor enter the property with an instrument (such as a deed) which would create in the mind of the possessor the possibility that the possessor has title to the property.
Here, neither the man nor the sister had a deed to the property when possessing it. The buyer did have a deed and has a better argument for color of title, but the buyer’s possession only amounted to 7 years which is less than the statutory period requires.
Thus, because there was no color of title throughout the statutory period, it is not likely that the doctrine of constructive adverse possession will apply. And if the doctrine does not apply, then title will only extend to the portion of the property that was actually possessed, the ½ acre.
Next is to determine whether the buyer is entitled to damages from the sister. A warranty deed contains a variety of covenants, and among them are the covenant of seisin and the covenant of the right to convey. Both of these covenants guarantee to the purchaser of the property that the seller has ownership rights as to the conveyed property. If a seller does not have such ownership rights, the covenant is breached.
Here, the sister purported to convey a general warranty deed to the buyer. She purported to convey all of the property and not just the property that was actually possessed by the man and the sister. As per the above, it is not likely that title was acquired to any property that was not possessed and so when the sister purported to convey it she was claiming to own property that she did not actually own.
Therefore, because the sister purported to convey title to property that she did not actually own, it is probable that she breached the covenants in the general warranty deed. And as such, the buyer should be entitled to damages for that breach.
The final issue is to determine whether the buyer can compel the company to remove the sewer lines that are beneath the property that the buyer purchased. When a person acquires title by adverse possession, the person who acquired the title receives no greater rights than the original owner who is now barred from claiming ownership.
As per the facts, the original owner of the property granted a properly-recorded easement to a private sewer company. There is no indication that when the man, the sister, and the buyer possessed the property they did so in a way that might have adversely possessed the easement. To the contrary, there is no indication that any of them were aware that the easement existed.
Thus, the original owner of the property was subject to an easement which was not likely extinguished by the fact that that property above the easement was adversely possessed. And because the original owner of the property was subject to the easement, the buyer as well will likely be subject to the easement on the property that the buyer now owns.
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