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A landowner built a tennis court on his property, as well as an observation booth on the top of the fence along the side of his property. The landowner’s neighbor complained that the fence was on her land, but the landowner, citing a prior survey of the property, advised the neighbor that the fence was, in fact, on his land. Twenty-five years later, the neighbor sold her property. The buyer discovered that, although the fence was on the landowner’s property, the observation booth extended over the buyer’s land by two feet. The jurisdiction requires 20 years for adverse possession. The buyer demanded that the landowner remove the observation booth.
Who will prevail?
(A) The landowner will prevail.
(B) The landowner will prevail, but he must pay for the diminution in value of the buyer’s land attributable to the overhang.
(C) The buyer will prevail and may remove the booth, the cost of which must be borne by the landowner.
(D) The buyer will prevail and may remove the booth, but the cost of which must be borne by the buyer.
The Answer is : A.
The landowner will prevail because he has adversely possessed the air space over the neighbor's land for the statutory period of 20 years. The fact that the neighbor sold her land during the period will not stop the statute from running. Thus, choice (A) is the correct answer.
The buyer cannot prevail and the landowner is not liable to him for any damages. Therefore, choices (B), (C) and (D) are not correct.
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