Predict who owns a disputed strip of land after decades of use behind a fence. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Priya Nandakumar, Partner. Re: Whitcomb boundary dispute. Our client, Edith Whitcomb, has owned Lot 12 for 30 years. Her neighbor, Roland Pike, bought Lot 13 last year and says the fence between the lots is on his land and that he owns a six-foot strip that Ms. Whitcomb has been using. Please write an objective memorandum predicting whether Ms. Whitcomb acquired title to the strip by adverse possession, and whether the mistaken belief about the boundary affects the result. Use only the Library.
File
Client interview
Ms. Whitcomb bought Lot 12 in 1994. The prior owner, Alan Grey, told her the fence was the property line. She has mowed, planted flowers along, and kept a shed on the strip on her side of the fence for 30 years. Neighbors saw her use it. She has never asked permission from any owner of Lot 13. She paid property taxes on Lot 12 only. Mr. Grey told her he used the strip since 1988. A survey ordered by Mr. Pike shows the true line is six feet inside the fence, on Ms. Whitcomb's side. Mr. Pike bought Lot 13 in June of last year. The fence has stood since 1985.
Survey summary
The recorded boundary between Lots 12 and 13 lies six feet west of the existing fence. The strip is 6 feet wide and 90 feet long. The shed is 8 by 10 feet and sits within the strip.
Library
Real Property Code, section 5-301 (Franklin)
A person acquires title to land by adverse possession by possession that is actual, open and notorious, exclusive, hostile, and continuous for 20 years. Possession under a claim of right is not required to be in good faith. Successive possessors may add their periods if they are in privity. Payment of property taxes is not required.
Harlan v. Osgood, 38 Fr.2d 455 (Fr. Sup. Ct. 1984)
A landowner built a garage that encroached three feet onto a neighbor's lot under the mistaken belief that the survey line was the true line. The neighbor sued after 22 years. Held: for the landowner. Hostility does not require ill will or a knowing claim to another's land. Possession is hostile if it is without the owner's permission and is inconsistent with the owner's rights, so a mistaken belief that the land is one's own does not defeat hostility. The court explained that the question is the possessor's conduct, not the possessor's state of mind.
Merritt v. Cade, 44 Fr.3d 129 (Fr. Ct. App. 2014)
A landowner used a neighbor's driveway strip for 25 years with the neighbor's oral permission. Held: for the neighbor. Use with permission is not hostile and cannot ripen into title however long it continues. The court also held that tacking requires privity, meaning a voluntary transfer of the land from one possessor to the next that includes the disputed strip, either by deed description or by an oral transfer accompanied by delivery of possession.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
States the elements of section 5-301 and that 20 years are required
Applies actual, open and notorious, and exclusive possession to Ms. Whitcomb's use of the strip and the shed
Applies Harlan to hold that a mistaken belief about the boundary does not defeat hostility
Distinguishes Merritt because there was no permission from any owner
Addresses tacking with Mr. Grey using Merritt's privity requirement and the fence's location
Notes that Ms. Whitcomb's own 30 years exceed the 20-year period so tacking may not be needed
Notes taxes are not required and predicts she acquired title
Writes objectively and identifies remaining uncertainty