Constructive Adverse Possession

Adverse possession shows up quite a lot on the UBE. A nuance sometimes tested is a specific type of adverse possession called constructive adverse possession.

The general rule is that an adverse possessor cannot acquire title by adverse possession unless the possessor goes into actual possession of the land. But the exception of "constructive adverse possession" modifies the analysis. If a possessor enters the land under a "colorable" document (sometimes known as entering under "color of title") but only takes possession of a portion of the entire area described in the document, the possessor may be able to claim title to the portions described in the document that were not actually possessed. It's important (it always is!) not to allow the exception to become the general rule. In other words, for this exception to apply requires specific elements. They are as follows:

--The area not possessed by the possessor has to be reasonable in size.

--The area not possessed by the possessor has to be adjacent to the area actually possessed.

--The portion possessed and the portion not possessed must be owned by the same person.

Don't be too concerned about what might constitute "reasonable in size," for example. If it's a close question of fact then it's more likely to be tested on the essays. Know the elements; that's what important. And then argue both sides. 

I sometimes describe learning the law as similar to peeling back an onion. The first layer of the onion here would be the elements of adverse possession. Notorious, continuous, all that stuff. But then, by peeling back the onion one more layer, you arrive at this nuance. An issue for many people taking the test is that they need to peel back that onion one or two more layers.

First know the basics. That's the foundation. But the test writers will, more often than not, expect you to also go a bit deeper than that.