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32. If the daughter's conservator wins an ejectment action against the neighbor, what will be the most likely explanation?
The applicable statute of limitations provides as follows: «An ejectment action shall be brought within 21 years after the cause of action accrues, but if the person entitled to bring the cause of action is under age 18 or mentally incompetent at the time the cause of action accrues, it may be brought by such person within 10 years after attaining age 18 or after the person becomes competent.»
When the daughter was 28, she was declared mentally incompetent and had a conservator appointed to oversee her affairs. Since then, she has continuously resided in a care facility.
A neighbor who owned the property immediately adjacent to the land wrongfully began to possess the land at that time. For 24 of the next 25 years, the neighbor planted and harvested crops on the land, hunted on it, and parked cars on it. However, in the sixth year after he first took possession of the land, the neighbor neither planted crops nor hunted nor parked cars on the land because he spent that entire year living in Europe. The neighbor built a small gardening shed on the land, but he never built a residence on it.
A woman died, devising land that she owned in another state to her daughter, who was then 17 years old.
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To establish title by adverse possession, the possessor must show the following:
Actual possession of the land: This requirement is designed to give the true owner notice that a trespass is occurring. As a general rule, the adverse possessor will gain title only to the land she actually occupies.Exclusive possession of the land: Exclusive, in this context, means that the possessor is not sharing with the true owner or the public at large.Open and notorious possession: Possession is open and notorious when it is the kind of use the usual owner would make of the land. The adverse possessor's occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.Hostile: The possessor's occupation of the property must be adverse. This means that the possessor does not have the true owner's permissions to be on the land. The state of mind of the possessor is irrelevant. By the large majority view, it does not matter whether the possessor believes she is on her own land, someone else's, or has no idea who owns the land.Continuous possession: The adverse claimant's possession must be continuous throughout the statutory period. Continuous possession only requires the normal degree of occupancy and use that the average owner of the property would do.Notably, an action to quiet title is not a requirement for adverse possession. Bringing an action to quiet title is usually more of a practical situation that would happen in real life so the possessor can establish that he has valid title. However, it does not factor into whether title was established through adverse possession on the MBE.
D is correct. The time period to acquire title by adverse possession in this jurisdiction is a minimum of 21 years. The neighbor has not been in continuous adverse possession for the entire 21-year period required because the neighbor spent one year in Europe after the first five years of possession.
A is incorrect. As stated above, the time period necessary to acquire title by adverse possession in this jurisdiction is at least 21 years. The neighbor spent one year in Europe after the first five years of possession, which means there was not continuous adverse possession for an entire 21-year period.
Because the daughter was a minor when the adverse possession began, she would be entitled to the protection of the tolling statute if it would extend the time in which she could bring her ejectment action. The tolling statute would not assist her in this case, however, because her minority ended within one year, when she turned 18, and the extension period of 10 years would allow her only 11 years in which to bring her action, less than the minimum time period of 21 years provided in the first part of the statute. The daughter's subsequent mental disability has no effect on the running of the statute.
B is incorrect. The daughter's mental disability has no effect on the running of the statute because she was not mentally incompetent at the time the neighbor began adversely possessing the land; thus, there would have been no tolling of the statute. The time period to acquire title by adverse possession in this jurisdiction is a minimum of 21 years. The neighbor has not been in continuous adverse possession for an entire 21-year period because the neighbor spent one year in Europe after the first five years of possession.
C is incorrect. There is no requirement that a residence be built on occupied land to adversely possess it. The neighbor has not otherwise satisfied the elements of adverse possession, however, because the neighbor has not been in continuous possession, as required, for 21 years, having spent one year in Europe after the first five years of possession.