Why Adverse Possession - a Legal Way to Steal Property?

Factual Questions
1

I wanted to ask a general question of why the concept of Adverse Possession is still tolerated in a civilized, post-agrarian society?

Adverse possession, in my general understanding, is the concept of maintaining, taking care of, or using someone else’s real estate property without their permission, and then being able to claim it as your own after a certain time frame (often given as “7 years”, which is the time in Kansas IIRC).

There are even “urban legends” that deal with this - for instance, that of a man who mows two extra passes onto his neighbor’s lawn for 7 years, then goes to court and has that extra 3 feet of lawn awarded to him. Or who plants a tree on his neighbor’s property, and after 7 years claims that the land to the tree and where the tree is planted is now his.

I almost had a negative experience with this, as I bought some rural property long ago. I found out after purchasing it that a neighboring farmer had been farming over 1 acre of it for more than a dozen years. I looked up case law on Adverse Possession, and found that it was often awarded on the flimsiest of evidence (so it appeared) - just one or two farmers going to court and swearing that they had used the property continuously, and had never received payment. No real photgraphic, surveying, expert witness, or other proof required.)

And the rub is - the original property owner had to pay taxes on that land that was taken from him, and has no recourse to sue for the past tax burden from the person who takes the land by the Adverse Possession.

Now, IIRC, the whole point behind Adverse Possession was a remedy to the problem of poor quality or no surveying being done in the early days of the United States, when no one was totally certain where the “legal” boundaries of their land were. So a farmer who had relied on a certain plot of land for 20 years could always know that he could farm on it, or a house built accidentally partially on another’s property would not be forced to be torn down if there was a legitimate error in marking the plot.

But in this day of laser surveying and GPS, why is Adverse Possession still on the books? Because I can find no real reason for it other than being used as a legal way to steal property from another.

2

It’s very easy to talk about GPS millimeter surveying and all that, but deeds were drawn up over 100 years ago. I myself own a piece of property where one leg is listed as 782.11 feet, the town assessor has it listed as 781.11 feet, and by triangulation, I measure it as 785.42 feet.
Who’s wrong? Who’s gonna pay to find out? Who’s gonna go to Land Court to have the deeds corrected and the land staked out? The point is: nobody’s gonna take the time, there are enough other things in life to worry about now.

Yes, adverse possession is still on the books. Most of the time, adverse possession is not intentional. Mr. A (for example), builds a structure on his land. 20 years later, the neighbor (Mr. B) has his property surveyed for a subdivision. Only then is it discovered that Mr. A and Mr. B had both incorrectly assumed the location of the property line.

3

Well, in my case it was pretty significant - we were talking about an entire acre here - and it was not clear at the time of purchase that it was being farmed by the neighbor, and not the person I bought it from, in case you were wondering.

In addition, I don’t call it “legal stealing” where there is a legitimate error. I call it legal stealing when someone can start using your property, without your explicit permission (just your implied permission, evidently - and no, “No Trespassing” signs apparantly are not enough to say you did not give permission for an adverse use of your land), and then claim it is theirs after a certain length of time. When there was never any dispute about the surveying and/or boundaries.

4

I thought adverse possession existed for the purposes of being a difficult question on the bar exam. That’s how I heard of it. I learned about it when a friend of mine asked me to help him prep for the exam. Adverse possession was one of the questions.

5

Adverse possession should only work in cases where one party openly and with hostility, claims property belonging to another…hence, adverse possession. The presence of a fence, house or whatever structure will not be protected under adverse possession unless the trespasser publicly gives notice that they are using anothers property and the owner does nothing to prevent it.

6

I’m from a very different jurisdiction (Australia) and IANAL, but adverse possession is generally very hard to show. In your example

time would start to run again from the date of the land transfer. Anything the legitimate owner does which might be thought to be affirming title will start time running again.

picmr

7

You see, that is a very good point you are making, and I thought it would work that way. Apparantly, in the State of Kansas, it does not work thus.

Oh well, I sold the land before it became an issue. But it still really bothers me - the whole concept. So I am trying with an open mind to see if there is a legitimate reason to maintain this practice today.

8

Anthracite, I do not know the particulars of your case but AFAIK to gain title by adverse possession the owner has to pretty much have abandoned the property. Adverse possession means uncontested use. Any expression of ownership by the titled owner will invalidate the claim.

If you pay taxes on the property and you have denied use to others or given permission to use making it clear you are granting the permission because you own it, then I would be quite sure they could not claim adverse possession. Also I believe in most states the period would be more like 21 years than like 7.

It makes sense to me that an owner who has pretty much abandoned his property to the point where someone else has being using it (including paying taxes on it) and caring for it and acting as the owner for over 20 years, that the user could claim title.

OTOH, if I come and put my lawnchair in your yard while you are away on vacation for a couple of weeks, that should not give me any rights.

IANAL but your scenario sounds very unlikely to me. Amybe some lawyers can give a more informed opinion.

9

Adverse Possession, along with almost all of U.S. real estate law, is based on the English common law. Centuries ago in England, land was the only significant form of wealth, and it generated income from being farmed (or mined or timbered, etc.). If the land wasn’t being worked, it was considered largely valueless. Accordingly, one of the goals of the common law was to make sure that land was being used productively.

Now if a land-owner wasn’t interested enough in the land to work it, or show up and collect rent (or at least make sure that no one was living there) for a period of 20 years (the original period of adverse possession, IIRC), then the land would be awarded to the person who had actually used the land productively for those 20 years. Part of the idea of this was to avoid title disputes. If somebody shows up with what looks to be a 25-year old deed for the land from the Duke of Wherever (the old Duke and all of the witnesses having died at least 15 years ago), whoever has possession of the land can say: "wait a minute . . . I’ve been working this land that I believed that I owned for 22 years now. You can’t just waltz in here with a piece of paper and take it away. You should have done that within the first 20 years I was working it.

By the way, picmr, my understand of (U.S.) adverse possession law is that the mere transfer of title does not start the clock running again. The owner has to actually oust the adverse possessor from the land to interrupt the period of adverse possession.

Anthracite, there may be two things that you have to protect you, title insurance and deed warrantys. If you bought title insurance when you bought the property, then you are most likely insured against just this sort of problem. If you took the property by warranty deed (known as a general warranty deed, special waranty deed or a bargain and sale deed with covenants), then the deed will likely have a clause saying something like: “grantor covenants that he has not done or suffered anything where the premises have been encumbered in any way except as aforesaid.” What this means is that the grantor (the person who sold you the property) has promised that while he owned the property nothing he did or failed to do (except as otherwise noted in the deed) made the title anything less than the title he recieved. If the farmer acquired the land by adverse possession during the time the seller owned it, then the seller has breached this promise, and you may be able to recover damages if the statute of limitations has not expired.

I would find your deed and title insurance policy or title report check with the title company or a lawyer.

[obligatory disclaimer]By the way, this is all general discussion, I have no idea what jurisdiction you are in or what the specific laws are there, and you should check with a local lawyer there rather than relying on what I say.[/obligatory disclaimer]

10

Well then I guess this isn’t a problem for you now.

Anyway, sure there are important reasons to maintain this practice today. I guess the most important is conforming reality to the paper. If something has been happening on a piece of land for 10 or 20 years and the owner hasn’t objected (and admittedly the law is more complex than this), then the owner really shouldn’t complain. Usually the problems are a lot smaller than a whole acre (more like a few inches of driveway or a fence a few inches over the property line.) For instance, there are whole sections of lower Manhattan where the deeds are entirely wrong because of surveying errors like you mentioned. No one gets too worried (except for some banks that don’t understand the situation. . . . aarrgghhh), because the buildings have been there for decades and adverse possession and related doctrines mean that buyers are buying the buildings, along with the land under them, and not buying the incorrect property descriptions on the deeds.

11

Anthracite, you make some good points about adverse possession. That’s why some jurisdictions have abolished it.

Jurisdictions with a Torrens system of land title, rather than a registry system for deeds, normally don’t allow adverse possession.

The title certificate issued by the Government guarantees the title to the land described in the certificate. If there’s an error, the titles system has an assurance fund to compensate whoever loses from the error in the certificate.

12

Actually, the possessor has to pay the taxes to gain title by adverse possession. Additionally, the rightful owner can derail any adverse possession attempt by granting permission to use the property, or denying use/access to the property. In some large cities you sometimes see little brass plaques set into the sidewalk where the sidewalk seems abnormally wide. The plaque usually says something like, “Permission to pass revocable at any time” or some such language. That means that the extra sidewalk area is really private property, and those little plaques are intended to demonstrate a claim of ownership and expressed permission to the general public to use it.

13

FWIW, a lawyer relative told me once that adverse possession cannot be used against public property at all, only private property. If you’ve been using part of an adjacent state park as part of your yard, you can never claim that land as your own no matter how long it’s been and no matter that the state has done nothing about it.

14

I looked up AP in California a few times. But the person claiming the property has to PAY the taxes on the property they are trying to claim.

If they are just using it, say for a throughfare, then another law comes into play, The Right of Public Passthrough, or something like that, in other words, if you walked through it for 25 years or more, you can sue to have that right if they should not allow you to anymore.

15

Property gets abandoned all the time. Even valuable property. That’s why we have adverse possession laws.

A common scenario is that John Doe, who owns Blackacre, dies without a will, and with no immediate family. Now let’s say his closest relative is a distant cousin in a faraway state. That cousin now has claim to Blackacre, but doesn’t know it.

Now the cousin dies, again without a will. He has four children. Those chilren, then have two children each. Skip ahead a few generations. Now 187 heirs have a theoretical claim to an interest in Blackacre. None of them know it.

I have seen this scenario happen many times.

There is a government policy to keep land productive (and therefore revenue-generating). Therefore the doctrine of adverse possession is in place to allow an enterprising person to come in and, after the passage of time, stake a claim to the land, and bring it back into productive, tax-revenue-producing use.

What often happens in the real world is that a particular area (north Atlanta, e.g.) becomes a hot real estate market. Builders are scrambling around looking for places to put their subdivisions. Joe Builder notices a large, forsaken wooded lot, and goes down to the courthouse to see who owns it. He finds out about John Doe’s death 70 years ago, and realizes that the (very valuable) property is abandoned. He pays the back taxes, and tracks down a single heir who John Builder then pays to give Builder a “deed” to the land. Then John Builder files a so-called “action to quiet title,” which is a lawsuit “against all the world” challenging anyone to come in and claim title to the land. A notice is published in the newspaper. If no one appears in court to challenge title, presto! John Builder has title to the land.

There is a sub-set of lawyers out there who scan the papers for these “quiet title” lawsuits, and then track down all 187 actual heirs and, in return for a percentage share of title to the property, offer to represent the heirs’ interests in Court.

16

In many ways, adverse possession is not different from other activities which might be referred to as “legal stealing.” For example, if I break into your house and steal your jewelry, and enough time passes, I’m off scot-free. (i.e., I can’t be prosecuted for theft or burglary, and you can’t sue me for conversion). If I slug you in the face, and enough time passes, you can’t sue me for assault (or battery, for that matter).

One of the policies in the law is elimination of stale claims. This policy can be harsh a lot of the time, but it recognizes the reality that, for many reasons, the law shouldn’t bother with wrongs that are too old.

17

In every Indian land claim that I’ve studied closely, the first line of defense for those who occupy the land is adverse possession. Followed quickly by collateral estoppel, right of conquest, abandonment, statute of limitations, laches, and a host of others.

If the land is stolen reservation land, none of those defenses will work. It’s one of the very few examples of cast-iron conveyance protection that I know.

18

A bit of an aside – my Aunt and Uncle bought a house in Plymouth from two gentlemen, brothers IIRC, who were selling lots and building houses on the lots.

Not long after the check cleared, the two brothers sued my relatives on the basis of an old law in Plymouth that prevents whites from swindling Indians out of their land because Indians are too stupid to knowingly consent to a bill of sale.

Never mind that the two brothers were about 1/16 Indian, and knew exactly what they were doing.

My aunt and uncle fought tooth and nail in the courts and finally won but it cost them a lot of money.

19

Adverse possession (and the related concept of a prescriptive easement, which is what handy was referring to) is a fairly complex area of the law, and I could (but won’t)write 20 pages describing some of its nuances.

As Bill said, it’s not as easy to establish as Anthracite has been told. (insert same disclaimer as Bill here - I’m not a Kansas attorney either, so it’s possible that this issue is handled more loosely in some rural counties.) In general, though, the claimant’s possession must be adverse, hostile, notorious, exclusive, and under claim of ownership. These elements must continue for the statutory limitations period, which in Illinois is 20 years. (This can be shortened under some circumstances to 7 years if the claimant pays the taxes for the 7 years.) Essentially, the claimant must use the land to the exclusion of all others for the full 20 years and make it clear to the world that he is holding himself out as the owner of the property.

If the true owner gives permission to the claimant to use the land, adverse possession doesn’t run, as it isn’t adverse (or hostile). If the true owner uses the land in any systematic way, adverse possession doesn’t run. In my experience, it’s also extremely difficult to establish adverse possession if the true owner is paying the taxes.

I agree with Bill and others who have already explained the concept behind adverse possession (to encourage the productive use of land.)

Somewhat easier to prove is a prescriptive easement. An easement is a right to cross or otherwise use someone else’s land for some limited purpose. Ownership isn’t affected. A *prescriptive *easement is one that is created by ongoing use for the same limitations period. These are more common than successful adverse possession claims, because the claimant doesn’t have to establish exclusive use, and payment of taxes isn’t an issue. For that reason, prescriptive easement claims can be a bigger threat to landowners. Neighbor crosses your land for 20 years to get to the lake or his back 40 (or whatever)? You may not have the right to stop him from continuing. Smart landowners give formal written permission, or periodically block access with a gate, both of which reset the 20 year clock.

One point I disagree with: Title policies do not always
cover these situations. Many policies contain an exception for possessory claims that would be revealed by viewing or surveying the property.

Previous posters have correctly said that adverse possession does not run against a govermental unit.

Anthracite, maybe I can best show you the reason behind adverse possession by giving you an example. A couple years ago, I had a case where my client owned a tract of undeveloped land. Part of it had been dedicated as a road years ago by the long-dead farmer that had owned the land at the time. (Dedicating a road means granting most rights in the land to a govermental unit.) For nearly every practical purpose, that meant that the farmer no longer owned the land, and that was his mindset. When he sold his farm, the deed he drafted had a legal discription that ended at the road, but did not include it. Subsequent deeds were similar, although some later deeds did include the road. In the 1980’s, the government vacated the road, meaning that the dedication was essentially revoked. Under one interpretation of Illinois’ very confusing law on these matters, that meant that the farmer’s heirs now owned the land again. (for the lawyers on the board, I’m aware that what really happened is that the road encumbrance lapsed and that the fee always remained with the farmer’s family, but let’s not make this any more complicated than we need to.) I was able to use adverse possession principles to quiet title in my client (and beat a competing claim from Amoco Oil, which owned some neighboring property), because my client had been using the property and had been paying taxes on it for 7 years. The fact that he was the successor in the chain of title from the farmer, at least to the adjoining land, was also helpful to our position in the case. The farmer’s heirs would have been difficult or impossible to trace, and the farmer clearly never intended to retain any interest in the area when he sold his farm 50 years ago. His mindset was almost certainly that he had given up the road-land years earlier, when he dedicated it as a road.

Hope this helps.

20

I should emphasize that the references to 20 years and 7 years apply only to Illinois, and YMMV in other states. Don’t assume you are safe if someone has only been using your land for a shorter period of time. If you have property which may be affected by adverse possession or a prescriptive easement, you should talk to a lawyer (even if you are in Illinois.)