When Your Land Is Not Yours Anymore...

[MountainDon]

This is one of those things that is difficult to classify as to where it belongs. If stuck in Land Stories some may miss it.

A thought on another forum made me research the question of squatters rights. I found something called "adverse possession" that surprised me. What this boils down to is if someone makes use of your land, even just a small piece of it without your express permission, all 50 states have laws that may allow them to lay legal claim to your land.    Surprising.

If you give permission for the use adverse possession does not apply. To qualify for the adverse possession catch there are some specific terms that must be met, such as the use of the land must open for all to see; hidden use does not count.

Adverse possession is the taking of title to real estate by possessing it for a certain period of time.  Title means ownership of real estate.  The person claiming title to real estate by adverse possession must have actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title.  By its very nature, a claim of adverse possession is hostile to the claims of other persons.  It cannot be hidden but must be open and notorious in order to put other persons on notice as to one's claim for possession of the real estate.

A claim to title by adverse possession often must be made under color of title.  Color of title means a claim to title by way of a fact which, although on its face appears to support a person's claim to title, is in some way defective and falls short of actually establishing title to the real estate.  An example of a claim made under color of title would be a deed whose execution was defective or is in question.  Another example is a claim arising from another person's Last Will and Testament.  Yet another common example is where two or more persons have received separate deeds to the same parcel of real estate.

The above is from this webpage. There is a list of all the states with the lengths of time that have to be met along with other provisions. Each state does their own thing. Just so nobody gets the bright idea of getting themselves a piece of National Forest lands held by the federal or state governments or municipal corporations are exempt from this. As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession.

More reading here.

What started this train of thought was this story from CO in 2007.

http://articles.latimes.com/2007/dec/03/nation/na-land3

BOULDER, COLO. — For more than 20 years, a retired judge and his lawyer wife trespassed on a vacant lot next door to their home.

They planted a garden there and stacked their firewood. They say they held parties there and walked the land so often they wore a path in the grass.

Last year, Richard McLean and Edith Stevens claimed the land as their own under Colorado's adverse possession law, once known as squatters' rights.

In October, a district judge awarded them one-third of the lot, which its owner values at $1 million.

Although the couple won in a court of law, they have not fared well in the court of public opinion in this university town, where the case has become a cause celebre, sparking a protest and calls for change to the law.

The doctrine of adverse possession, which says a person can gain possession of property after using it without challenge by the owner for a certain length of time, isn't a new or obscure legal doctrine. Still, its application in this case has the residents of this university town fuming.

"This scares the hell out of landowners," said Don Kirlin, the man whose property was taken away. He said he and his wife first took it as a joke when he heard of the former judge's designs on their land.

In 1984, Kirlin, a commercial airline pilot, and his wife, Susie, a former teacher, bought two adjacent lots on the southern edge of the now-pricey city. They lived in a home a short distance away, but hoped to someday build their dream house on their vacant land, which abuts city-owned open space, a rolling expanse of ponderosa pine and native grasses.

They frequently walked their dogs past their vacant land, but say they never saw any sign that anyone was using it.

Nor did they think to worry about such a thing, Susie Kirlin said. After all, they paid their property taxes and homeowner fees. They sprayed for noxious weeds and repaired fences. What else did an owner have to do?

That attitude speaks to misconceptions about property ownership, said Eduardo Penalver, a law professor at Cornell University.

"There's a mythology of land ownership -- that if you own land, you can do anything you want," he said. Property rights are limited, he said. "This is one of those limitations: If you're not vigilant, it could be taken."

The law is based on a philosophy that land should be used, Denver real estate lawyer Willis V. Carpenter said. "If you don't use it and someone else does, they'll end up owning it," he said.

[Pritch]

Don, adverse possesion laws vary greatly from state to state; often what is an essential element in an AP claim in one state is precisely what will invalidate it in another.  the concept derives from the old public policy that it was wrong to allow waste.  In this context, the waste was letting perfectly usable land not be put to some productive use.  Land that sat for generations untended by absentee owners was to be discouraged, so this doctrine arose.  ("If you won't use it, your neighbors will.") 

I'll look and see if I still have any of my materials from my first year real property classes. 

[n74tg]

When I moved to Arkansas in 2000, in my own subdivision an adverse possession case had been brought and won by the "squatter."  Once the neighbors all heard about it, some of them (my next door neighbor being the least scrupulous) decided he wanted to try to increase the size of his lot by using
AP to take some of the lot I was in the process of buying.  In Arkansas, one of the requirements is you must fence off the property and prevent entry by the owner and others for a period of seven years before you can file the AP case and try to get ownership.  

The lot was fairly large and it was a rent house before we bought it.  The renter put up a temporary pet fence around some (but not all) of the backyard.  When we looked at it and made our offer to purchase, the only fence present was the temporary fence.  We were living in Houston at the time, and it was maybe three weeks before we made the actual move to Arkansas.  Upon arriving, I find a brand new permanent wood fence across the back of my lot.  I asked my realtor what gives and he said the next door neighbor had "bought" that part of the lot from the owner who was selling it to us.  (It turns out that my realtor was a good friend of my "neighbor" and was in on the deal).  

The day before closing on the house my neighbor comes over to introduce himself, all smiling and gladhanding and stuff like that.  He said he had bought the back of my lot six months before, but was just now getting around to fencing it.  However, he was going to put in a big barbecue pit and a gate for us to use the area if we wanted too.  If we had a boat, he'd be glad to let us park the boat back there.  I mean here is a total stranger coming up and offerring all this to someone he'd just met.  It sounded way too fishy to me.

So we all walked back to where the new fence was, and he showed me the steel rod property stakes that outlined the new boundary of the property.  Only problem was there were way too many stakes and all the stakes looked just a little bit too new.  The plastic flagging tape wasn't even the least bit dirty yet.  More smell of fish.  

What bubba didn't know was that I am darn near a licensed surveyor as well as a civil engineer who had designed and built several large land related projects.  So, I was able to pretty much immediately spot irregularities in the surveying.  I didn't say anything at the time, but the next day at closing, I asked if the "sale" had been recorded in the county records.  The title company rep said "what sale" and I explained the story.  It was then that I figured out that my realtor was in on the deal, because he sent his wife (also a realtor) to handle the closing.  When the title company guy and I both looked at her, she just turned her palms up and said she knew nothing about this and that we would have to speak to her husband.  

So, the title company rep says there was no sale recorded and that therefore it didn't exist.  He further showed us the written subdivision requirements which prohibited subdividing any lot.  So, we finished closing the sale.  Afterwards we drove over to the property and two minutes later the neighbor shows up and one minute after that my realtor shows up.  Both of them are already crawfishing and backing up saying they both thought the sale had gone through and been correctly recorded at the court house.  They were of course denying any wrongdoing, all of this just being an honest mistake.

I told them, I don't care what else you do but if that fence isn't removed by tomorrow I'll cut it up with my chainsaw and use it for firewood.  It was gone by the next day.  My neighbor and I never spoke again the whole three years we owned the house.  It wasn't until maybe a month or so after the closing,  when I met another of my neighbors that I heard about all the adverse possession lawsuits going on in that area.  I told him about my case and mentioned who the two guys were by name.  He said that the realtor had been a real sleaze for quite awhile and that he wasn't surprised at all by my next door neighbor; that he had been involved in plenty of questionnable deals and that a lot of people knew it.  

At the time we bought the house I had never heard of adverse possession.  Had I not smelled a rat, or asked about it at closing, who knows, my neighbor might have succeeded.

I later found out my neighbor had hired a man to beat up his own wife.  She divorced him, took him to court, took the house and his business.  Somehow, he escaped going to jail.  So, I guess justice prevails ... sometimes.  It just takes awhile.

I just realized this was my 500th post on the forum; so I wanted to make it a memorable one.

[RainDog]

I just realized this was my 500th post on the forum; so I wanted to make it a memorable one.

And you sure did. Great story, and illuminates the potential misuses of the law perfectly as well. I bet their plot would have worked 99 times out of 100. Good job!

[NM_Shooter]

Hmmmm.  What a crappy law!

So can I set up camp in the middle of BLM, or national forest land and do this same thing?  Or does this screw only apply to private landowners?

[rick91351]

Only the private land owner.  The God of Government - state and federal are way above this. 

[Virginia Gent]

Adverse possession is the taking of title to real estate by possessing it for a certain period of time.  Title means ownership of real estate.

So in reality, A.P. only grants you use of Real Estate, which is different from land. Land is considered intangible property, while Real Estate is considered tangible property, IE. a house. If you had true title, you would have control over the land and all its appurtenances. If the courts are granting some squatter rights to your Real Estate, which doesn't make any sense to me, then you never had full control over your land and all its appurtenances. If you never had full control, the only logical reason is because you contracted your rights away. Don't contract your rights away, and no matter what anyone says, a court of law will have to find in favor of you assuming anyone tries to do the same thing to you.

[rwanders]

Actually, Real Estate is the land plus any permanent structures attached to it----that's why mobile homes are, in most jurisdictions, considered "personal property" and are taxed as such. If you examine the deed to a house, the legal description is the same as the lot or tract description----they will sometimes also include a street address i.e. 123 Main Street. That address is assigned by the town or county and is actually attached to the land, and is not dependent on having a structure on it.

Adverse possession sometimes seems an easy thing to establish but, in practice, is quite hard to maintain in court. Courts do not sustain such claims easily anymore. The most common cases are those where someone has allowed an extended and unfettered use such as a roadway or driveway to be established on a portion of their land. All that is required to protect your rights in a case like that is to give notice of your ownership periodically to the users if you don't mind providing them access. If you do, block access or sell them a little strip of land.

[Virginia Gent]

I shall have to respectfully disagree. Land and Real Estate are two separate things. The example you gave sounds like a case of something called "Perfect Deed" to the land and all its appurtenances.  Chances are, what you are describing is an object called a Land Patent. Land Patent's  expressly "grant" these patent secured rights to the named patent recipient and to their heirs and assigns, forever. That means that the property (real estate) sitting within the borders of the Land is land patent secured to the lawful patent holder. That means if one receives assignment to such land through a Perfected Deed they already own it from the time the Land Patent was initially made and granted. This info and more can be found here: http://teamlawforum.net/viewtopic.php?f=3&t=3

As for personal property and being taxed, that becomes a whole new discussion. One that involves a giant trust set up where trustees buy these objects through the trust (99.9% of the time unknowingly due to ignorance) thus granting the beneficiary of "said" trust the legal rights over whatever it is you think you own.

[bayview]

   I had purchased two lots. . . One in front of the other.  There is a driveway from the road, through the front lot so one could access the rear lot.  The driveway is all surveyed and deeded to the rear lot.

   My neighbor on the west side thought the driveway was actually a road.  (yeah,right)  So they built their home over 15 years ago with their driveway accessing my drive.  When I started building, she (the elderly homeowner) mentioned she was surprised that I didn't put in a driveway on the other side of my lot.  "Another driveway, I said . . . This is already my driveway that you access."  She smiled sheepishly and went about her business.  She was testing me.

   Another neighbor periodically uses my driveway to access his backyard.  I put a large log across my driveway to limit his ability to use the drive.  He came over when I was building my garage to inform me that I couldn't restrict his access.  Since, he had been using my drive for over 15 years.  He said that there is an "applied easement" on the drive.  Well instead of arguing, I removed the log.   I didn't maintain that part of the drive for about a year, since I don't use it.  The weeds and such grew about waist high.  He came back over and told me that I must maintain that part of my drive since he has access to it.  I said:  Since you access my drive you can also help maintain it.  I'll need $700.00 from you for the gravel, labor and Bobcat rental..  Well that was the end of it. 

   It has been about 5 years later and he has some sort of brain cancer.  He isn't doing well at all.  Has a wife and two kids in school.  The oldest just turned sixteen.  I do feel sorry for his situation.  I will put up a fence between their property and my drive if they are forced to sell or move.

   I am kind of "stuck".  I want my own privacy but again don't want to pi$$ off the neighbors.  I am only at the property on weekends and kind of rely on my neighbors for security.


/

[MountainDon]

Your situation is a good example of why I told my wife we were going to build fences and have lockable gates around every square inch of our properties. With them there can be no misunderstanding at all. I feel badly for you bayview. You are not alone in this though. I know of a similar case near us up in the mountains.  I hate it when anyone gets screwed around for being tolerant of something wrong that others do. I hope somehow you get things worked out without needing the cost of a lawyer and without ticking off the neighbors.

[Whitlock]

Your situation is a good example of why I told my wife we were going to build fences and have lockable gates around every square inch of our properties. With them there can be no misunderstanding at all.

No misunderstanding at all I hope you are right but ALL and I repeat ALL the fences that I have put up between propertys have made trouble one way or another. I allways put my fence on my side by a foot or two.
Right now my property has  BLM on 3 sides and wouldn't you know it the one side that isn't I have trouble
It is surveyed and the neighbor tells me that my property bulges out into his I only own what I own and nothing more I tell him
I can here it now Don hey that fince is on my side to far. Don you can't put a gate up we use that road Don we had to cut your fence becuse our cows got in there and we didn't have a key to the gate. Don while I was brushing my property with my Cat I hooked your fence with my tracks and didn't relize it until there was about 1000ft takin out.
And the best one of all hey Don can you help me pay the vet bill it was your fence that my horse got cut on
All things I have had happen because of my fences.


With your every square inch comment I hope I never buy land next to you

Love thy neighbor,W

[MountainDon]

Hmmm     Perhaps I've spent too much time in the cities where property lines get down to the inch because many/most folks have lots that are 75'0" wide and you'd have to be crazy to give away a foot, let alone two. Our concrete block walls here sit on the line and we share them. They went in before the lots sold in many cases.

But back to the mountains. I fail to see why anyone should basically give away land with a two foot setback. Maybe if one is talking about a forty acre wood or larger size parcel. But on something smaller I just don't get it. From what I've seen the people on the other side of the fence all too frequently have an amnesia attack and at sometime truly believe that everything on their side of the fence is actually theirs. A friend down in the village had to call the Sheriff a few times over the previous couple years when a neighbor took up the false notion that he owned a piece of road and could close it off. Several thousand dollars later our friend's lawyer prevailed. If she had placed a fence up years ago when she bought the land she would not have had that problem.

Like bayview found with the neighbors using his road to access a part of their property, sometimes they get accustomed to it and one day may take it as a right and then you have a real fight or you give it up in order to keep "peace". I feel it is prudent to head off that sort of nonsense rather than encourage it. The neighbors and us get along fine, and we all seem to like our fences right where they belong going by the survey markers. This past fall I helped James fence a narrow strip of his land that runs back into the national forest beside ours. We pretty much put that right down the line.

I guess I feel that if there are not fences there are likely to be more problems than when there are fences. I could be wrong, but only time will tell.

[MushCreek]

I talked to our neighbor on our rural property about fences and boundaries. Of concern to me was that one of the survey markers was in a patch of his lawn, and his burn pile was on our property. I casually brought up the subject, and he took me on a tour of the our adjacent property lines, pointing out every marker. This was good, since I didn't want to have an issue later on. He couldn't understand why I wanted to put a fence up, though. I said it was to keep our dog in, which he also couldn't understand. I lied and said she's pretty mean on other dogs. The fact is that he has 4 pitbulls that think our land is an extension of theirs, and they've scared the stuffing out of me on more than one occasion. He seems OK with the whole thing, and is the nicest guy you ever want to meet, so I'm optimistic. Once the fenceline brush is cleared, all of the markers are line-of-sight, so I'll go pretty close to the line- maybe 6" or so. I haven't made up my mind yet about the burn pile; I thought about fencing it in, and both of us sharing it, but if he sets the woods on fire, it will be on my neck, not his. Having been sued once for something that was only indirectly our fault, I tend to run towards caution.

BTW- If you think your land IS yours, try not paying the taxes on it, and see who it belongs to!