40. In an action to determine title, for whom should the court decide?

The woman has now become aware of the changes that have occurred on the land.

The period of time to acquire title by adverse possession in the jurisdiction is 10 years.

Fifteen years ago, two men who were fishing buddies moved onto vacant rural land owned by a woman they didn't know and built a small fishing shack on it. Twelve years ago, the men replaced the shack with a fish processing plant and a commercial fishing boat dock. The men maintained their commercial fishery operation on the land until one of them died intestate last year, leaving a sole heir.

For the man who is still alive and the deceased man’s heir, because the men acquired title as tenants in common
For the man who is still alive, because he is the surviving adverse possessor
For the woman, because the use was changed by the men while they were in possession
For the woman, because title cannot be claimed by two adverse possessors simultaneously

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Title to real property may be acquired by adverse possession. Gaining title by adverse possession results from the operation of the statute of limitations for ejectment. If the owner does not, within the statutory time frame, take legal action to eject a possessor who adversely claims to own the property, the owner is thereafter barred from bringing suit for ejectment. Moreover, title to the property will vest in the adverse possessor.

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.A is correct. The two men used the land as a fish processing plant and commercial fishing boat dock, which would give sufficient notice to the owner that a trespass was occurring. The men also used the land without permission and beyond the 10-year statutory period. Therefore, the men met the requirements for adverse possession.

B is incorrect. In order for the man to be the sole owner of the adversely possessed property, the first and second man needed to have created a joint tenancy with rights of survivorship. Modern law requires a clear, expressed intent to form a joint tenancy. There is nothing in the facts that show the two men created one.

C is incorrect. The men's use of the land is irrelevant to an adverse possession analysis, as long as they maintained continuous, hostile, open, and notorious exclusive possession through the statutory period.

D is incorrect. The only requirements for adverse possession are described above. A single possessor is not one of the requirements.

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40. In an action to determine title, for whom should the court decide?

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