MBE Real Property Adverse Possession Sample Question + Analysis

Fact pattern

For sixteen years, Dana used a wedge-shaped strip of land along the edge of a neighboring coastal lot. Dana planted a hedgerow, installed a low fence, stored kayaks there year-round, and paid to regrade the strip after two storms. The record owner, Pierce, lived out of state and visited only twice during that period. When Pierce finally listed the lot for sale, a survey revealed that the fenced strip was part of Pierce's parcel. Dana now claims title by adverse possession. Pierce argues that Dana never had a deed, never paid taxes on the strip, and believed in good faith that the fence sat on the true boundary.

Quick answer

Dana likely acquired title by adverse possession because she openly, exclusively, and continuously occupied the strip without permission for longer than the statutory period, and her boundary mistake does not defeat hostility under the majority rule. At common law, adverse possession requires actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period. The possessor need not hold under color of title unless a jurisdiction specifically requires it. Hostility usually means possession without the true owner's permission, not personal ill will. A mistaken belief about the boundary does not defeat hostility in the majority view so long as the possessor acted as an owner and not as a permissive user.

IRAC analysis

Primary law and source anchors

• Van Valkenburgh v. Lutz, 106 N.E.2d 28 (N.Y. 1952) A leading case on the actual-possession and hostility elements in adverse possession disputes.
• Howard v. Kunto, 477 P.2d 210 (Wash. Ct. App. 1970) Seasonal but owner-like use of property can still satisfy continuity in context.
• Restatement (First) of Property Section 458 Traditional adverse-possession principles focus on possession that is open, notorious, and hostile to the true owner.