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Patricinus Scriblerus
02-01-2000, 12:30 PM
What exactly are "squatters rights"? Can someone just barge into my place take up residence and claim these rights making it impossible for me to evict them? Do they still exist?

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There are only two things that are infinite...the Universe and Man's stupidity...I'm not sure about the Universe though.

AWB
02-01-2000, 12:47 PM
They do exist (in Canada at least), but you have to pretty oblivious to let them take effect.

Basically, there's two types:[list=1] Adverse Possession occurs when you are prevented from using any portion of your land for 10 years.

The person adversely possessing your land is usually an adjacent property owner. That person must possess your land openly, without interruption, for 10 years, and in such a manner that you can't use it.

Examples would include a fence that has been placed a foot onto your property or the corner of a building that is planted on the wrong side of the property line. But a neighbor's driveway extending onto your property may not create any rights of adverse possession because you would still be able to use that land.

If these things are ignored or undiscovered, the true owner will lose the legal right to object. In most cases, the true owner is not even aware of the problem until it is too late. Most of these types of problems surface when a property is sold.

Prescriptive Easements do not give interlopers a right to occupy land that does not belong to them. Instead, it gives them a right to continue passing over it in a particular fashion.

For example, if someone has cut across your backyard for the last 20 years, he or she may have won themselves the right to an easement to do so forever.

This person would be required to prove you knew they were cutting across your yard, you had the right to stop them, but you neglected to do so, all without interruption for 20 years.[/list=1]

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When danger reared its ugly head,
He bravely turned his tail and fled

Frankie
02-01-2000, 12:55 PM
AWB-

Im not a lawyer, but my fiancee just finished her first year. I think also in order for either of those to take place the "squatter" must also not be given permission to build the fence on my property or cut through my back yard etc.

I'm sure Melin or other attorneys could answer more fully on the Model Code though!

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-Frankie

"Mother Mercy, can your loins bear fruit forever?/Is your fecundity a trammel or a treasure?"
-Bad Religion

DSYoungEsq
02-01-2000, 03:29 PM
True 'adverse possession' is almost impossible to have occur on your property; it requires that you not pay any attention to it for several years. The same is true for proscriptive easements.

The notion that someone can move into your building that is abandoned and have a right to stay there is, for the most part, without foundation in the law.

Jodi
02-01-2000, 04:49 PM
Everything said above is basically correct, but I'll add a few little clarifications:

1. Adverse possession requires possession that is actual, continuous, exclusive, hostile, open, and notorious for a period of years (five, seven, or ten, in most jurisdictions). Actual meaning you have to really be there, not just claim some right; continuous meaning you can't leave for the required period of years; exclusive meaning no one else can have the same right to claim it as you do; hostile meaning without the owner's permission and to the detriment of the owner's interest; open and notorious meaning not secret and known or knowable by reasonable investigation. In many jurisdictions these days (including mine), you also have to pay the taxes on the property for the prescribed period, which makes it almost impossible to secure a true adverse possession.

2. Tenant's rights are not the same as ownership rights for obvious reasons. Assuming by "squatter's rights," we're talking about a claim of actual ownership, such a claim can only be proven through adverse possession. The law may make it very difficult to evict a recalcitrant tenant, but it can be done; once a person proves a claim by adverse possession, he or she actually owns the land in question and cannot be kicked off it.



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Jodi

Fiat Justitia

Northern Piper
02-01-2000, 05:26 PM
I'd just like to expand a bit on AWB's expansion.

There are two types of land ownership in the common law provinces in Canada: title, and registry.

The eastern provinces historically have registry systems, while the four western provinces and the three territories have a titles system. (And yes, Ontario has both, just to be confusing.)

In a registry system, you prove ownership of land from the title documents that you got from the person you bought the land from: the transfer, the deed, the Crown patent, etc. You can register those documents in the land registry to declare your claim to the piece of land to all the world, but ultimately your claim to ownership depends on the "chain of title." A working rule of thumb for conveyancers is that a chain of title going back 40 years is acceptable.

In a land titles system, also called a Torrens system, once a title is registered in the Land Titles office, that is proof of title, good against all the world, except in cases of fraud, etc. You don't worry about "chain of title" - you go down to Land Titles and see who owns it.

"Squatters' rights," both by adverse possession and encroachment, are ancient common law principles that apply in a registry jurisdiction, but not in a titles system.

In a registry jurisdiction, registering the chain of title does not guarantee ownership, so if someone comes in with a claim of adverse possession or encroachment and can prove it, that supercedes the claim listed in the registry.

That's not the case with a titles system. If it ain't on the title at Land Titles, it ain't there. If you're listd as owner, it doesn't matter how long Joe Squatter's been living on your land - it's still yours. If someone's encroaching, you get a survey, compare it to the survey at Land Titles, and that decides the issue.

In both cases, you may still have to go to court to enforce your title, but you don't have to prove title against the squatter or encroacher.

Patricinus Scriblerus, I see from yopur profile that you're from Alberta, so you don't have to worry about squatters or encroachers - Alberta is a title jurisdiction.

(It's been a while since I worked in Quebec, which is a civil law jurisdiction, but I think their system is more akin to a titles system, and you can't get adverse possesion against land. I may be wrong on this point.)

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and the stars o'erhead were dancing heel to toe

ellis555
02-01-2000, 07:11 PM
this may have already been mentioned, as i kind of skimmed through some of the longer posts. i just wanted to clarify that this is true in the U.S. (or at least VT) as well. we recently discovered that our fence has been a few feet into our neighbor's property for the last 20 years or so. yee-haw, free field!

-ellis

handy
02-01-2000, 09:20 PM
I think that its 25 years you have to 'use' property for one of its possible 'uses' then you can stake claim to it. I was reading this recently cause there was some property I have my eye on. This if Calif, USA, though.

AWB
02-02-2000, 01:28 AM
True, giving them permission basically sets their 10 or 20 year count back to zero. Of course, too, they're still on your property.

How can you prevent these things
from happening to your land?

To start, the only absolute way of determining whether there are existing encroachments onto your land is to verify your property by hiring a surveyor to prepare a building location survey (known as a real property report). With a new survey in hand, you will also be much better equipped to prevent future encroachments.

If an encroachment or the potential for an easement by prescription is discovered and you still have time to do something about it, but don't wish to rock the boat with your neighbor, the solution may be as simple as giving them permission.

Permission undermines any right a squatter may acquire and, at worst, required the period of time to start afresh.

If a neighbor's fence encroaches on your land or their shed is over the line and the 10-year period is not completed, you merely need to get their acknowledgement in writing that they are encroaching with your permission. You would then renew this acknowledgement just prior to every 10th year anniversary. (If the neighbor refuses, you have the right to cut off the part of their fence or shed that is on your property but not more -- a risky business akin to Shylock attempting to extract his pound of flesh in "The Merchant of Venice".)

The same would hold true for an easement by prescription. Getting the person to acknowledge they are cutting across your land with your permission confirms you have the right to stop that use.

If that doesn't work, consider a temporary fence or gate. It is not uncommon to see a private road stopped up every 19 years for the express reason of interrupting the 20-year period.

On a technical note, land in Ontario is registered under one of two systems, Land title or Land Registry. Squatter's rights can only occur against land registered in Land Registry, which includes most homes in Ottawa but not new subdivisions.

As to land that belongs to the government or a government body or organization, it is also beyond the reach of the squatter.

Judging by what you stand to lose, it doesn't hurt to periodically review the physical extent of your land holdings, at least just shy of every 10 or 20 years, as the case may be.



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Wrong thinking is punished, right thinking is just as swiftly rewarded. You'll find it an effective combination.

AHunter3
02-02-2000, 01:40 AM
Tenants' rights can also have some pretty impressive teeth.

In NY, if you allow someone into your home and do not expel them for a period of 30 days or longer, you have acquired a tenant who has the right to remain until formally evicted via housing court. This is true regardless of whether or not there was a rental agreement, regardless of whether or not they ever paid you.

Tenants' rights can be overriden by other concerns such as protection from violence (the tenant commits a misdemeanor or felony against someone else legally residing in the home), but generally not for something as mild as merely threatening to kill or stating that "this is my home now and I think you should leave". (These are not generally arrest-worthy behaviors).



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Bricker
02-02-2000, 01:49 AM
Tenants' rights can also have some pretty impressive teeth.

You said it.

I once had the misfortune to be part of a general partnership that owned a building in southeast DC - not the best part of town. We bought it as an investment, the planned-for development did not ensue, and we were stuck with it.

Evicting tenants in DC was well-nigh impossible. These folks would be months behind in their rent, but well-versed in every advantage the law gave them.

Part of the problem was mine, in that I insisted we not attempt to evict people during the coldest winter months. This may have been mawkish foolishness on my part; my partners saw it that way and eventually bought me out (at a loss, I might add). Looking back on it, there's no reason to assume our eviction attempts in February would have been more fruitful than those in August.

Ah, well.

- Rick

DSYoungEsq
02-02-2000, 10:37 AM
21 years here in Ohio (ORC§5309.07), to the extent it can be done at all (ORC§5309.89). Taxes have to be paid for the prior ten years.

Like I said, almost impossible to accomplish. :)

Spoke
02-02-2000, 12:34 PM
DSYoungEsq--

To quibble a bit, it's not quite as impossible as you suggest.

True, it would be hard to accomplish under the OP's scenario (going onto a knowing owner's property and setting up camp). Where it can and does occcur is in cases involving missing or unknown heirs.

Example: John Doe owns an acre of land. He is unmarried, with no children. His parents are dead, he has no siblings, and his closest living relatives are distant cousins who live many miles away from him and from each other. He and his distant cousins are incommunicado. (This situation is not that unusual. It can come up fairly often with gay men.)

John Doe dies with no Will. His property, at law, belongs to his distant cousins, but they are unaware of their ownership interest, unaware of John Doe's death, and perhaps unaware that they are even related to John Doe.

Now, Joe Squatter comes onto the land, fences it off, puts in a mobile home, and starts paying taxes. A few years down the road, and Joe Squatter is the proud legal owner of this property!

The theory behind adverse possession (squatters' rights in the common parlance), is that it is in the public interest for land to be in use and productive. (Note: The concept obviously pre-dates the environmentalist notion of preserving "green space".) Allowing squatters to come onto abandoned land and bring it back into productivity serves (in theory) that public interest.

On a personal note, as a lad, I did some title research work in the rural county where I was raised. There were several tracts of land in that county which had been abandoned in just such a manner.

Caveat: Would-be squatters do need to proceed with some haste to occupy the land, or the local government might ultimately seize and sell the land for back taxes. (However, the land in the rural county I researched had been abandoned for a number of years, without payment of taxes, and the government had taken no action. Don't know why.)

On a side note, there seems to be a cadre of lawyers in the Atlanta area who specialize in taking advantage of such situations. When the owner of a valuable piece of property dies and no heirs come forward, these attorneys track down the distant heirs and offer to clear up title in return for a fee, often a percentage of any sale of the property to a developer. I know of one such situation where there were 156 heirs spread over ten different states.

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"Every time you think, you weaken the nation!" --M. Howard (addressing his brother, C. Howard).

John W. Kennedy
02-02-2000, 03:32 PM
The theory behind adverse possession (squatters' rights in the common parlance), is that it is in the public interest for land to be in use and productive. (Note: The concept obviously pre-dates the environmentalist notion of preserving "green space".) Allowing squatters to come onto abandoned land and bring it back into productivity serves (in theory) that public interest.

Isn't there also a sanity factor involved, so that a present bona fide owner can't be kicked out by someone presenting a colonial charter?

(By the way, is it still true, as it was in the middle ages, that it is much easier for a rival tenant to evict a squatter, since a tenancy is personal, not real, property? This is said to be the origin of the "legal fiction;" a landlord would come into the court saying that he was acting on behalf of his lawful tenant, John Doe, nudge-nudge, wink-wink.)

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John W. Kennedy
"Compact is becoming contract; man only earns and pays."
-- Charles Williams

Spoke
02-02-2000, 03:47 PM
Not sure I follow your meaning, JWK. :confused:

Northern Piper
02-02-2000, 06:04 PM
John,

you're quite right. Unfortunatly, the reasons for it are rather obscure.

At common law in late medieval England, the action to recover land from someone who claimed to own it was the "assize of novel disseisin." It is not known why, because the records are scanty, but it was not a very effective remedy. Litigants and inventive lawyers started looking for a new procedure.

Their solution was to start using the action that was available to get rid of an over-staying tenant, the action for an ejectment. For obscure procedural reasons, the action for ejectment was much quicker that novel disseisin.

So, if X was on A's land, and A wanted him off, A would enter into a lease with B, and B would then, with the connivance of A, bring an action for an ejectment against X, alleging that X had ejected him from the land and was trespassing on it. To defend himself, X would claim that he owned the land, B would cite his lease from A, which in turn depended on A's claim to the land. To decide the action for ejectment, the court would have to decide which claim was good, A's or X's.

This approach probably was originally based on real situations, but as those sharp lawyers realised the procedural advantages of ejectment, they started using it all the time, with leases that were entered into soleyly for the purpose of bringing an action for ejectment. As well, to make it even more complex, for further procedural advantages, they started alleging a fictious lease by X to Y, and having B sue Y in ejectment. (Is your head spinning yet?)

Eventually, the two stooges, B and Y were firmly established as legal fictions, and were listed as John Doe and Richard Roe. Everyone knew they were fictions, but they were necessary to make the cranky machinery of the common law work.

The fictional elements were eventually abolished by Parliament in the 19th century, as part of the many legal reforms of that century. The action for ejectment still is available, although as one legal historian, Milsom, puts it:

"These convolutions were therefore the immediate source of the modern action for the recovery of land; and it is the more remarkable that we do not really know why they were gone through."

Whether it is still easier to eject a tenant than someone claiming title would likely depend on the laws of each jurisdiction.

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and the stars o'erhead were dancing heel to toe