Near where I live, there is an abandoned railroad track. Suppose you abut this land-you extend your fence onto the RR land, build a patio, swimming pool, etc, and use the land as yours. Since you did this,time goes by…and then you claim ownership of the land (since you used it openly and notoriously. Is the land then yours?
A few years ago, a guy in another town tried this-his lot abutted some town-owned land. He did what I described, but the land court found for the town.
Can you actually acquire free land this way?
The common law doctrine of adverse possession has been done away with (or mostly done away with) by statute in most jurisdictions. I’d be surprised to see a successful argument for claiming land in such a way in modern times.
One aspect that remains in some jurisdictions is squatter’s rights, in which you can claim abandoned property if you have been occupying it for some time (on the order of several years), and you can show that the real owner has made no effort to get you out. In these cases there’s no issue of changing boundaries because the squatter doesn’t own any adjacent property. Most squatter’s rights cases that make it to court fail due to the strict requirements for success.
This is known as adverse possession, but you cannot claim title against any government agency through adverse possession. The possession must be “open and notorious” for a certain period of time. It must also be adverse. State laws vary as to the period of time. Just because the railroad company no longer uses the track doesn’t mean it has abandoned the property. If the railroad company has continued to pay taxes on it, it has not abandoned it. By adverse, the owner of the property must have knowledge of the assertion of ownership by the occupant. The adverse possession must be actual, not constructive. Payment of taxes is not sufficient. The possession must be continuous for the period of time mandated by local law.
On preview, I read friedo’s post. I don’t agree with it. I don’t think any state statute has abrogated adverse possession, but merely has defined the requirements for it. If friedo has a link to a state statute abrogating it, I would like to see it.
It has been abrogated in those Canadian provinces which use the Torrens system, because adverse possession would undermine the basic principle of Torrens, which is that whoever is listed on title is the owner. Do any of the states in the US use Torrens?
As an example, in 2008, New York passed an amendment to existing real estate statutes that restricted many avenues of adverse possession claims, specifically excluding things like lawn-mowing, hedge-growing, shed-building, and fence-erecting across property lines, among a long list of other things, from being used as an adverse possession claim. (This was in response to a number of New York court decisions which were seen as unfair by many.)
Other states have similarly chipped away at the ways in which as adverse possession claim may be made, although my initial description of “done away with” is probably not accurate now that I’ve looked into it a little more.
ETA: Here is a link to NY RPAPL Article 5 § 543 which is has of the recent changes.
(not an attorney)
My understanding of the whole thing is that one thing that “adverse possession” protects is people who discover flaws in their title to property many years later. For example, suppose you are living in a house that you were told has been passed down father to son since 1850. You discover in 2011 that your great-great…etc grandfather was underage when he bought the land, and the deed purportedly granting him the land does not have a parent’s signature, which under the law in place at that time, was required, and any purported land grant to a minor without parental permission was void. Adverse possession provides that you can keep the land and don’t have to turn over the house to a descendant of the guy that “sold” grandpappy the land.
Yes. Several states have Torrens, but it is optional. Illinois has the Torrens system, but most people do not enter into it, preferring the old method with a title insurance policy to protect them. The thing about Torrens is that it does not idemnify the buyer in the event there is a defect in the title. A title insurance company does.
robert_columbia, I think a minor can buy land, but would have the applicable time after reaching majority to void the contract. The same principle would apply if the minor was the seller. In any event, adverse possession is really not used in those types of situations. Laches and estoppel would be the defense in the event some descendant of a 19th century owner claimed ownership.
I examined title for many years in Illinois. Adverse possession usually arises due to an incorrect boundary line on adjoining properties. A surveyor made an error, or some other error arose, when the legal descriptions of the properties were drawn up. If it turns out that one owner did not really own all the land described because of the error, he could have acquired title to that land by the principle of adverse possession, since he had actual possession and everyone knew he claimed title to that land. The “actual” owner, although ignorant that he is the owner of record, could have lost his title if, in fact, the adverse claimant had actual possssion (usually determined by a fence).
I should add, as you know, Northern Piper, that the Torrens system has an idemnify fund, funded by filing fees. I didn’t mean to say that a title company will idemnify you but that Torrens won’t. I meant to say that the title company will first try to defend your title. The terms of the policy require that. The Torrens system will not defend your title in court. And if there are not enough funds in the Torrens system to idemnify you, you are out of luck.
I just happened to check the Illinois statutes recently. I have not lived in Illinois since 1985. The Torrens Act was repealed in 1997: http://codes.lp.findlaw.com/ilstatutes/765/40/3
This “Torrens Repeal Act” provides for the continual filing of adverse interests and that all the Registrars records concerning Torrens be placed of record in the Recorder of Deeds Office.
There was an adverse possession case in the UK I read about perhaps 5 years ago, involving a mansion. A fellow was renting the estate, which was in poor repair, and he kept submitting claims to the landlord for things like leaks, cracks, drafty windows, and whatnot. Well, the landlord apparently didn’t want to put any more money into the place, so he started ducking the tenant, on the phone and in person. The tenant started withholding rent in an attempt to force the issue, but the landlord apparently still didn’t care.
After about 20 years, the tenant filed an adverse possession claim, which the landlord finally tried to block, but the court sided with the tenant. So, I suppose he became the proud owner of a million-dollar home needing a million dollars in repairs. Still, I suppose one can’t complain.
The basis of adverse possession is that the Statute of Limitations bars claims against the adverse possessor after a certain amount of time. So if someone’s on your land and you have reason to know it - which is why it has to be open and notorious - you can file a claim and get them off your land. But if you wait too long, you lose the right to recover.
What is the difference between “adverse possession” and “prescription and acquiescence?” There was a case some years ago in which some Savannah River islands were apparently part of Georgia, but were awarded to South Carolina, and I recall the latter phrase, but it seems there are similarities in the concept.
To muddy the waters on this a bit, sometimes the railroad was built on a right-of-way easement instead of land held by title. In theory, when the line is abandoned, the easement is lifted, and the land is supposed to revert to the successor land owners.
This has caused several legal fiascos when Telcoms want to bury optical fiber in the old ROW, or the local governments want a bike trail built.
Did you know that the IC rrld in downtown Chicago was built on land in which it was granted only an easement by the state, not the fee simple? This includes land upon which the Prudential Building was built. A taxpayer some years ago sued Prudential, Chicago Title and Trust, and the IC claiming that the land was granted for rrld purposes and that the IC could not convey the fee simple to Prudential, title to which was insured by CT&T Co. In a landmark decision (I don’t have the cite), the Illinois SC held estoppel against the state, citing numerous actions by both the state and the city indicating it acknowledged the fee in the IC.
The track in question is of the old Boston and Worcester railway, which last ran in 1956.
Oddly enough, this route includes abridge over nearby Rt 128-and the bridge is impeccably maintained-for some reason.
That’s one of many. There was also a branch line in northern Indiana abandoned by Penn Central, that Elkhart County wanted to build a bike path on. The path was eventually built, but the eminent domain card had to be played to get it done.
The Monon trail in Indianapolis and Carmel was another, but I don’t think that went as far as eminent domain. Several landowners in Broad Ripple bitched loud and long, however.