Adverse Possession/ side point to vagrant thread

[JWarren]

I am not trying to bludgeon the proverbial deceased equine with this post. Art suggested that I open up a new thread to discuss a point that was mentioned but not really discussed.

It isn't gun-related, but I do feel that a discussion/awareness of this would benefit our community.


On this thread:

http://www.thehighroad.org/showthread.php?t=265596

there was a good bit of discussion regarding squatters on your property. The responses were varied, but some pushed the limits and the OP resolved his problem resulting in a thread closure. On that thread, I tried to point out the legal/liability ramifications of unauthorized persons on property.


There were a few brief mentions on the thread of "Squatter's Rights" but no real follow-up. I wanted to post this on the original thread to perhaps bring a discussion of that concept/provision.


I found this link while looking up Squatter's Rights:

http://en.wikipedia.org/wiki/Adverse_possession

In short:

In common law, adverse possession is the name given to the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time.

In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, hostile possession during those successive useful periods, for the required number of years.

From what my searches indicate, Adverse Possession is a much larger issue in the UK than it is in the USA. However, I did find a number of legal cases and reference to state statutes regarding Adverse Possession. The issue seems to have no clear-cut answer-- I had to search over 20 pages of Google to get an idea of this issue. As I said, there are a number of cases regarding Adverse Possession, but trying to dig through them is like reading the phone book. If this issue may affect you, I would highly encourage you to check with a lawyer in your state to determine the statues regarding this in your state.

By brief search shows that timeframes for adverse possession in the USA can range from 7 years to 20 years across states.

My point to this post was simply to bring awareness to this concept as a service to THR's community. Feel free to discuss, but let's stay on the high road.


John

 

[mek42]

This seems to be similar to the point of being an essentially identical argument to the one recently used by the US Gov't regarding some of the recent native American land claim issues. Essentially, "Yes we stole your land illegally but you didn't complain about it soon enough to the time of the theft so it sucks to be you. What's that? You say you were too busy trying to not get shot by the US military throughout the acceptable timeframe where a complaint would have been valid? Objection: relevance."

I'm sure that this is a true reflection of the law, but it seems to me that this particular aspect of the law actively encourages theft. It doesn't seem right to me.

 

[dfaugh]

By brief search shows that timeframes for adverse possession in the USA can range from 7 years to 20 years

Which is why it's relatively unheard of, although it does occur.

 

[SteveS]

I took property in my first semester of law school and will admit that it wasn't my best class. If any of you are contemplating law school, I'd maybe wait until you have a few semesters under your belt.

IIRC, adverse possession came about to encourage the most effecient use of land, by making an incentive to at least check on it once in a while. If someone did not and someone else came along and developed it, then the property is being used. I'd have to dig out my property text book for a more detailed description. FWIW, these kinds of cases are rare.

In my state, Michigan, the statutory period is 15 years (IIRC). Adverse possession must be open and notorious. It would not be enough to sneak into the house and quiety live there for the time period, nor would it be possible to succeed if you built a house just over the property line and the real property owner was unaware of exactly where the line was. In addition, you have to take steps to appear as the real owner, such as register utulities in your name, pay property taxes, etc.

 

[Bartholomew Roberts]

The other case where adverse possession comes up a lot is the one where Steve mentioned - somebody builds the fence line over the neighbor's property line. They are buddies so the neighbor says nothing about the 6" encroachment. 10 years later when the neighbor sells the house, the new owner looks at the plot and decides he wants the fence moved. Dispute ensues and usually the court's will apply adverse possession to settle it.

A classic case on adverse possession is Van Valkenburg v. Lutz. This is a case where one neighbor disciplined the other neighbor's children for tearing up his vegetable garden. The bad blood from that one incident spawned a 25 year series of lawsuits back and forth between the two families over land boundaries.

Adverse possession is supported in law because it promotes transferability of property by making title issues less confused. There are generally three rationales given for adverse possession:

Earning theory – adverse possessor has earned it by his or her use of property

Sleeping theory – true owner is not using his or her rights to the benefit of community

Dependence theory – it is morally wrong to allow a relationship of dependence to be established and then cut it off

 

[TallPine]

Isn't "adverse possession" pretty much how we got the whole country from the Indians

 

[SteveS]

Excellent description, BR.

In terms of encroachment on your property, I guess it depends on where you are. I have seen some local cases where people have gone to court over surveying errors. In some, the court will award the property to the "taker," but require them to compensate the true owner. Another thing to consider is that adverse possession must be without the true owners permission. If your neighbor puts up a fence several feet onto your property and you tell him that is ok, then he will not be able to claim adverse possession after any length of time.