A landowner owned a large estate, which contained a small lake, in a Southern state. There was an island in the middle of the lake. Each day, a prominent married politician and her lover would swim to the island in a very surreptitious manner, and they make love in a small shelter which they had constructed on the island. Although they thought that their activity went unnoticed, the landowner observed them one day after they first went to the island, and made it a point to watch them at regular intervals thereafter. Twenty-one years after the politician and her lover had constructed their shelter on the island, the politician was turned out of office by the voters. She thereupon divorced her husband, married her lover, and claimed ownership of the shelter on the island.
In an action to establish title, the politician should:
A. Prevail, because her possession was open and notorious, even though she did not know that the landowner was aware of her activity.
B. Not prevail, because her possession was not open and notorious.
C. Not prevail, because she had unclean hands.
D. Not prevail, because her use was permissive.
{ 11 comments… read them below or add one }
A. adverse possession
Answer A is correct. To satisfy the open and notorious requirement of adverse possession, the owner must have actual or constructive knowledge of the possessor’s occupancy of the property. The statute of limitations begins to run when the owner knows or should know of the possession. Despite the fact that the politician and her lover thought that their activities were secretive, the landowner (the record owner of the land in question) did in fact know of their possession. Therefore, since the landowner had actual notice, the statute of limitations started to run against him, and at the end of the period (presumably 20 years), the landowner lost title to the politician and her lover under the doctrine of adverse possession.
Answer B is incorrect. Although the activity of the politician and her lover was not open and notorious in the sense that they publicly displayed their romantic hideaway, it was open and notorious in a legal sense because their use conveyed actual notice to the owner of the property.
Answer C is incorrect. Unclean hands is a defense to an action for equitable relief which is not applicable here. The doctrine means that a person who has defrauded the other party in the subject matter of the action will not be able to assert any rights in equity. The party’s wrongdoing must have some proximate relation to the subject matter of the controversy. Here, the politician’s activities on the island might raise some moral questions, but they do not give rise to a defense of unclean hands, as they were not inequitable in regard to the landowner.
Answer D is incorrect. In an action to establish title by adverse possession, the possession must be hostile. This requirement is satisfied as long as possession is acquired without permission of the owner. Although the landowner was aware of the politician’s and the lover’s use of the island, the use was not permissive because they made no attempt to obtain the landowner’s permission, nor did he voluntarily give his permission.
Looking forward to the answer.
I believe the permission must be express. AP punishes land owners that fail to eject a trespasser who occupies the land continuously for a really long period. If impliocit permission was a defense, then any knowing land owner would avoid the consequences of AP by simply doing nothing.
The best answer is D. In order to have adverse possession, there must be Hostility, exclusive, length for the statutory limitations, uninterrupted, visible, and adverse. Because the landowner observed them and made it a point to watch them everyday, there use was permissive, when the landowner could have kicked them off the land. At the best, the couple had a license to use the land.
B because the landowner was aware of her prescence on the island.
Answer is D. Adverse possession requires open, notorious, HOSTILE and CONTINUOUS possession. These last two elements are arguably not met since the true owner had actual knowledge and permitted their use of his land. Further, the facts say that the couple went to the island “surrepticiously” which was sporadic at best. Therefore, the elements of adverse possession are not met. At best, the couple had a license to enter landowners’ property granted by implied permission.
A is the answer. Politician’s “occupation” of the property was sufficiently apparent (ya think?) to put Landowner on notice that a trespass was occurring.
A is correct
B isn’t correct. Possession is open and notorious if an outside party would conclude from the possessor’s behaviour that the possessor was the owner. Here, the politican’s daily use could lead an outside party to reach such a conclusion.
answer A. but does anyone think B could be the answer because politician and her lover tried to conceal their activity/to go unnoticed. open and notorious is held out to be what a usual owner would do. maybe I am over reading the problem…..
D – Hilarious. Nice observation… I agree, its A.
A: A nice one for the Valentine Day. Unclean hands? What unclean hands?