Part of what’s happening with this kind of law is that it dates from a time when it was a lot easier to lose track of who owned a particular bit of land. Supposing a person was lost at sea and their heirs had moved away or died before anyone noticed they had gone? Or in London after the 1665 plague and the 1666 fire, there must have been parcels of land with nobody to claim them.
Adverse possession refers just to actual physical occupation and use of land. All that the law requires is that the possession be adverse, open and notorious, continuous, and exclusive for a prescibed length of time. You don’t have to make a subjective argument about whether or not the person intended to or actually did abandon their land. Just go through all the steps and enjoy your free beachhouse.
To answer galt above a bit more, adverse means that possession must be hostile, further meaning that the owner of the land hasn’t given the possessor permission to be there.
In my job, GIS, we are often asked to dig up old maps, and especially aerial photos to prove how long a ‘road’ has been in existence.
Often, someone will drive across another property for access to their own property. There was a lot of that going on across lode claims (gold mining) around here. I suspect that part of the law is there to prevent one gold miner to prevent another to get to their claim.
I can understand that from a fairness perspective. But I don’t think the law should be applied against newer platted properties that have defined access.
The 40 acres we own is very easy to define. It’s a ¼ ¼ of a section. A 1320 foot box. For me, it will be very easy to tell if someone else is on it. If the boundary was not so simple, and full of curves and angles, it would not be so easy. If it was bigger, it would be darn near impossible.
Hypothetically, if I had a very strange shaped property, and someone built near it, it would be very hard for me to tell if it’s on my land. The building may meet all criteria for adverse possession, but without some very expensive survey work, I would have know way of knowing. I wonder if that would cut out the notorious aspect?
Back to the parking problem we had. On the Improvement location certificate (ILC [you get one with a new loan to look for encroachments]) the survey labeled one area ‘Parking Easement’ and the other ‘Parking Area’. The ‘Parking Area’ was in dispute.
So, we could have drug everyone into court if the new owners tried to sue us. I would have HATED to do that, since I really don’t believe anyone was at fault except the lazy jackass that wouldn’t park where he was supposed to.
Very strange stuff.
Pretty sad for the owners of my Wife’s old house. At the time, they didn’t speak a word of English. They are Russian I believe. I can’t imagine what they think of our legal system. They have since sold the house, which is a relief to us since it puts us farther down the title chain.
That doesn’t cover my [hypothetical] situation. I grant Person A permission to use the land, and he never shows up. Person B shows up instead and claims possession. I haven’t given him permission. Considering I’ve rented the land out, I never visit it unless the tenant asks me to or unless he becomes a problem (e.g. nonpayment), neither of which he ever does. Where do we stand?
Do you know that person A hasn’t shown up and that B is there instead? Or do you think that A is there and you are not aware that, in fact, B is there?
If B is there without your knowledge then he would be there by secrecy and thus could not claim adverse possession. If B is there with your knowledge then you would change your rental agreement accordingly and then he has your permission and so still could not claim adverse possession. Least that’s my take.
Squatters’ rights sound similar to what happens when two parcels of property are separated by a fence, only the fence was incorrectly built some distance into one of the parcels instead of exactly between them. If the owner who is unfairly disadvantaged by this never complains or takes any other action, then the affected strip of land reverts to owner on the other side of the fence.
I have no knowledge of who is on the property. I’ve never heard of B in my life. I guess this falls under “secrecy” even if he’s not making a secret of being there.
He is making a secret of being there. Your rental agreement is with A. If B is living there posing as A then there’s the secrecy. In order to get round this B would need to phone you and say:
“I know you rented this property to A but I’m now living here, my name is B”
This gets rid of the secrecy - you now know that B is living there. Now it’s up to you to either change the name on the rental agreement or throw him off your property. Or you could do nothing and run the risk of an adverse possession claim in a few years. Although B would probably still fail in his claim because he’s presumably still paying rent to you so this would constitute permission, even without a formal agreement.
If he stopped paying rent to you and you did nothing about it for several years then maybe he might have a chance. Maybe.
This is precisely why in my jurisdiction, adverse possession is almost impossible to argue.
I think there is some confusion being created here. Adverse possession is still good law because there is a societal interest in promoting the efficient use of lands, but there is absolutely no overarching legal responsibility to maintain realty.
Every state has laws which might require upkeep of land to regulate nuisance and such. And of course you have to maintain real property that you are renting out. But, if you own a stretch of wasteland with a dilapidated home sitting on it you’re free to let it rot forever as far as the common law is concerned. If no one takes up shop there the law doesn’t assume you don’t want it anymore, and even if someone does move onto the land you don’t lose title to it until they have met with strict requirements for adverse possession.
Now, wait a minute: if I remember my property law on adverse possession correctly, a person doesn’t necessarily have to make his adverse possession known to the owner by any overt act. The possession needs to be “open and notorious”, meaning that the adverse possessor must not make his use of the land a secret. However, if I recall correctly, there’s no requirement that the possessor send notice to the landowner about his use of the land, as others above seem to suggest.
In the A and B situation above, if there are rental payments being made by either A or B, such payments are an acknowledgement by A or B (whoever is paying) that they do not own the land, they are only renting it. If you rent to A, but B uses the land and sends you rent checks, you’re still receiving open acknowledgement from B that he doesn’t consider the land his own, so there’s no way he could claim adverse possession. Even if you reject the checks from B, as long as he sends them you have proof that he feels that you are the true owner of the land. In the oddball event that A is sending the checks, but is not using the land, and B moves in and treats it like his own, B might have a claim for adverse possession after the required period, but what are the odds that A will pay rent for 20 years and never visit the property?
You’ve got it right. But, of course there can be no dispute as to whether possession was open and notortious if you inform the current owner that you are occupying his land. Failing to do so doesn’t disqualfy an adverse possesion claim though. The law assume thats a land owner is aware of the status of his land.
So you disagree with Jojo’s statement that he is making a secret of being there if he fails to inform me of his presence? As far as you understand it, what happens in my hypothetical?
B isn’t required to inform you. The only situation where an adverse possessor must inform a true owner is when a co-owner is trying to make a claim for sole title.
There are five elements generally required by common law are: possession must be actual, open and notorious, exclusive, hostile, and continuous. Open and notorious means behaving in a manner that would indicate to a reasonable person that you are claiming the property as your own. Doing things like making improvements on the property, putting up signage, or installing a fence are good indicators of open possession. However, if the true owner has actual knowledge of your possession the open and notorious requirement is automatically met.
In your first hypothetical B is squatting with A, who is properly on the land. B does not have a claim because his possession is not exclusive. He would have to oust A from the land before the statutory period would start tolling.
Your second hypothetical is more complex. You rent to A and he never shows up but continues to pay rent, and B moves in. If B and A are colluding you might have an action for fraud against them that would disqualify an adverse possession claim. But, if B moves in without knowing that A is paying rent and you fail to oust B from the property he might have a claim for proper title. The theory again is that landowners are aware of the status of their realty, including who is situated on it.
I fairly sure that’s correct. I’m going post your hypothetical to my Property class webboard to double check. I’ll post the reply when it gets one.
I’d be pretty bothered if this were the law. (But for whatever reason, Coke, Blackstone and Mansfield never consulted me.) I’d be interested in what you find out. Here’s a thought – would Pennoyer v. Neff have any impact on this?
–Cliffy
I’m not sure this is the case. When I used to work for a surveyor in PA, the accepted method was that the property owner who put up the fence was required to make sure the entire fence was on his own property - if it encroached on the other property, the owner of the fence could be required to move it. For safety sake, most fences were installed 3 or 4 inches back from the property line. I never heard of a case where the 3 inch strip became the property of the other owner.
There was a minor fence-type dispute between my mom and her next-door neighbors some years ago. When the neighbors moved in, they wanted to fence off their back yard for their dogs. In order to save on fencing, they (with my mother’s permission) connected the fence to the corner of Mom’s garage (one of the old style ones in the back yard, detached from the house). This gave them control of a three-foot wide strip of land next to out garage which was, according to the deeds, part of Mom’s property. Some years later, the neighbors claimed ownership of that strip of land by squatters’ rights. My mom didn’t put up too much fight over this, but just countered by claiming a similar-sized strip of land between her driveway and the neighbors’ house, where she had been planting flowers for many years.
It’s my understanding that both claims were legally recognized, although the neighbors had use of the strip next to the garage with Mom’s permission. Had she been so inclined, based on the information in this thread, she could have fought the claim on that basis, is that correct? On the other hand, Mom never asked the neighbors’ permission to plant the flowers next to the driveway; she just did it and nobody said anything about it. So would it also be correct to say that the neighbors could not have fought that claim?
Your mum does them a favour and then they stab her in the back? Wow! Some people are real idiots.
Yep, your mother’s action was hostile; her neighbor’s was not. I’m not sure what the courts reasoning for allowing both claims was, but it could have been based on a superceding efficiency or fairness rationale. Or perhaps the parties simply came to an agreement, which the court found it would be easier to sanction. I’d be interesting in hearing if your mother knows why the court gave the ruling it did.
P.S.
galt, my property professor never posted to the webboard, but I spoke to him in class and he confirmed my analysis. However, he said the court wouldn’t even have to go into whether A and B’s collusion constituted supervening fraud, rather the court could just determine that their actions were clearly intended to hide B’s claim of the land and thus it was not open and notorious.
P.P.S.
Cliffy Pennoyer v. Neff is a hallmark civil procedure case. It concerns jurisdictional limitations. How might it impact an adverse possession clam?
That’s surprising, since in my hypothetical example, I wasn’t imagining A and B actually colluding. I was imagining a situation where A was just as clueless about the whole thing as the landowner. In that case, the intention of A’s actions are impossible to determine.