AP News
One of the coolest things first-year law students learn about is adverse possession--if you openly and without challenge use land that's not yours for a long enough period of time, it becomes yours. It seemed nutty to me, but there it was.
Anyway, I figured this was some old common law rule that doesn't come into play any more, so I was thrilled to hear about this case in Boulder. Two families owned neighboring property for almost 25 years. One tried to build a fence along the border and the other sued since they'd been using some of that land since they'd moved in. They won, under an adverse possession claim.
The reaction of Boulder has been how a lot of people feel after they hear about this legal principle: What the...? Almost everyone supports the original owners. The family that won the case has been the target of lots of nasty mail and phone calls since then. Hey, that's why it's called adverse possession.
posted by LAGuy @ 12:11 AM
8 Comments:
Practicing in Colorado, I have of course been accutely aware of the advers possession issue being litigated in Boulder. Oddly enough, about 6 months ago I did some research on the doctrine for work, the first time I had dealt with it in 20+ years since law school.
What I found interesting was that, although the doctrine derives from ancient common law, it has been codified in many states, and two distinct, and in fact opposite interpretations have been implemented in the US.
The most common rule is called the "Maine" rule, and requires that the adverse possessor be that - adverse. He must know that the land is not his, but use and possess it anyway (openly and notoriously). A lot of states temper this with the "Connecticut" rule, which says it is sufficient if the possessor just doesn't know for sure whether who owns the land.
But three states turn the rule on its head (Georgia, Iowa and Louisiana). There, the possessor must mistakenly believe he owns the land in order to assert adverse possession when someone challenges his claim. Personally, I like this interpretation better, since it prevents someone from purposefully coniving to take land away from an unwary landowner.
La Guy, you'll be glad to know that California folows the Maine rule, but adds to it that the adverse possessor must actually pay the real estate taxes on the land in question for the prescribed period of time. This makes sense to me too - anyone can look up who is paying the taxes on a piece of real property.
You hadn't dealt with this in 20+ years? That means you're legally allowed to forget it.
The Maine rule is a bit odd since it creates an incentive for the (very patient) robber to, in effect, steal land. I'm reminded of the perverse incentive of the "natural accumulation" rule in slip and fall cases. The rule in many states used to be when someone slipped in front of a business, if they fell on the snow and ice that was already there naturally, they couldn't sue. This meant if you shoveled the walk you could be sued (since it created unnatural conditions) but if you did nothing you were safe.
From what I recall from school, the original economic justification for the rule was that productive use of land is better for society than land left fallow for decades. Thus, anyone who doesn't notice for 20+ years that their land is being openly used by someone else necessarily hasn't been using it productively, and loses it to someone who has. By that rationale (which maybe deserves some rethinking with modern concepts of environmental protection in mind), the ME and CT rules make good sense, but the GA, IA, and LA rules don't.
Imagine it being used with any sort of property. You notice someone never uses his bat and ball out in the shed, so you regularly borrow it for years. While I understand the original reasoning, it always felt weird--it's like being rewarded for breaking the law. (Some might analogize it to illegal immigrants being made citizens, though I wouldn't.)
As a Maine practitioner, let me point out one more advantage of the Maine rule-it can provide clarification in a jurisdiction where property records can be stored in someone's basement and legal descriptions often make references to stones, trees and fences that were in existence in the 17-1800s. It provides a mechanism for not having years old disputes arise several generations down the line. As to moral implications, I think the 20 year rule (maybe given the increase in life expectancy since Justice Coke's times, it ought to be lengthened)is a rational attempt to provide for mistakes to be fixed and for landowners to assert their rights and the "adversity" was designed to bring matters to a head. The advantage to the rule seems to outweigh the risk of an evil criminal plodding and plotting for twenty years to grab his neighbor's land.
I used this rule to recover some 25' of land. We had a survey done and the marker was 25' past this old split rail fence that had been there for years. I built my fence to the marker and tore down the split rail. By the time they noticed, my fence had been there long enough that we were the possessors. This happened in Michigan.
top [url=http://www.001casino.com/]online casinos[/url] brake the latest [url=http://www.casinolasvegass.com/]casino online[/url] autonomous no set aside reward at the best [url=http://www.baywatchcasino.com/]online casino
[/url].
top [url=http://www.c-online-casino.co.uk/]uk casinos[/url] brake the latest [url=http://www.casinolasvegass.com/]free casino bonus[/url] autonomous no consign reward at the foremost [url=http://www.baywatchcasino.com/]casino games
[/url].
Post a Comment
<< Home