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38. Who now owns the farm??
The period of time to acquire title by adverse possession in the jurisdiction is 10 years.
Last month, unsure of the effect of her conversation with the man, the woman executed a deed purporting to convey the farm to her son. The son promptly recorded the deed.
The woman then went to the man and told him of the history of activity on the farm. The woman orally told the man that she had been wrong to try to take his farm. She expressly waived any claim she had to the land. The man thanked her.
Three years ago, when the woman was not present, a neighbor took over possession of the farm. The neighbor repaired fences, put up «no trespassing» signs, and did some plowing. When the woman returned, she found the neighbor in possession of the farm. The neighbor vigorously rejected the woman's claimed right to possession and threatened force. The woman withdrew.
Nineteen years ago, a woman entered the farm. The character and duration of the woman's possession of the farm caused her to become the owner of the farm under the adverse possession law of the jurisdiction.
For 22 years, the land records have shown a man as the owner of an 80-acre farm. The man has never physically occupied the land.
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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.C is correct. The woman acquired title to the farm by adverse possession. The woman's title was an original title and did not derive from the man's title. The Statute of Frauds requires that the conveyance of the farm be in writing. Therefore, the woman's oral statement was insufficient to release the title to the man, and the woman validly conveyed the farm to her son. She will not have to quiet title for the farm to pass to her son, as she had legal title through adverse possession.
A is incorrect. The woman acquired her title to the farm by adverse possession. The woman's title was an original title and did not derive from the man's title. The Statute of Frauds requires that any conveyance of real property be in writing. Therefore, the woman's oral statement was insufficient to release the title to the man, and the woman validly conveyed the farm to her son.
B is incorrect. The woman acquired title to the farm by adverse possession. The woman's title was an original title and did not derive from the man's title. The neighbor's actions may have started the statute of limitations running on his adverse possession of the farm, but he has been in possession of the farm for only three years. In addition, the neighbor was never in privity with the woman.
D is incorrect. Title obtained by adverse possession is not subject to recording statutes, which means it will bind subsequent purchasers even if it has not been recorded. However, the adverse possessor can secure their interest by bringing an action to quiet title, and by doing so the title becomes freely marketable. Here, the woman acquired title to the farm by adverse possession. The woman's title was an original title and did not derive from the man's title. The Statute of Frauds requires that any conveyance of real property be in writing. Therefore, the woman's oral statement was insufficient to release the title to the man. Having established title to the farm by adverse possession, there is no requirement that the woman must bring suit to establish title. Therefore, she could convey the farm to her son.
Title acquired by adverse possession is historically unmarketable, but that comes to play under the implied warranty for marketable title in each real estate contract. If the title is not marketable, the buyer can rescind, sue for damages, or get specific performance. However, if the buyer continues with the closing, the contract merges with the deed and the seller is no longer liable. These concepts are not at issue here. The deed has already been delivered to the son and recorded. But even so, unmarketable title in this specific case does not mean the title cannot be conveyed, just that after the closing, the seller is no longer liable on the matter. Therefore, it does not stop or invalidate the conveyance to the son.