by Jay Johansen | Jul 3, 2020
I've seen a number of movies and TV shows with this basic plot; Someone comes along who says that he found an old property deed in his attic proving that his gret-grandfather bought the land that this town is on 100 years ago. The people the current residents bought or inherited the property from never legally owned it -- they were the victims of a scam. So he rightfully owns the entire town. He now demands that all the residents move out of "his" town, or that they must pay him decades of back rent, or whatever scheme he has to take advantage of this situation. These stories usually end with someone proving that the deed is a fake and so this person really has no legal claim to own the town.
I wonder how many people see such programs and think, But what if the deed didn't turn out to be a fake? All these people presumably bought their houses thinking the transaction was legal. Or they grew up in this house, have lived their whole life in this house, and now they're told that their family never really owned it. Could someone really come along with a 100 year old deed and throw people out of homes they have lived in for decades?
The simple answer is, No. These stories ignore how property law in America and many other countries really works. They ignore a much-maligned law intended to prevent situations exactly like this, called "adverse possession".
Laws of adverse possession say, in principle, that if you act like you own a piece of property long enough, then after a period of time the property becomes legally yours. The exact length of time varies depending on where the property is but generally somewhere between 7 and 20 years.
Many people hear of these laws and imagine a scenario where a dishonest person goes through the formalities and technicalities of the law and steals his neighbor's property. And they wonder why in the world the government would actually pass a law allowing someone to legally steal his neighbor's property. I've heard horror stories of people doing this. I don't doubt that some of them are true, that some number of unscrupulous people took advantage of the law.
One horror story I heard from a friend: I don't know if this is true, a friend told me that it happened to a friend of his, so I'm relating this third hand. An elderly woman owned several acres, and was having difficulty doing the work to take care of it. A neighbor offerred to mow the lawn for her, pull up weeds, and generally maintain the yards. She thought this was a kind neighborly gesture, accepted it, and thanked him. Seven years later the neighbor went to court claiming he now owned the property by adverse possession. As my friend told the story, the old woman was still fighting it, the issue had not yet been resolved.
As I say, I don't know if the story is true. As told, I don't see how the neighbor could win. I think the law here in my home state of Michigan is typical. It says that to take possession this way, your occupation of the property must meet a number of conditions:
These rules are intended to make it difficult for someone to steal property from a person who knows they own it and who is actively living there or otherwise using the property. You can't just walk onto somebody else's property one day and shout "mine!"
So when does adverse possession come into effect?
One case is the TV plot I mentioned: Someone comes along and says, "I have this 100 year old deed that shows that I am the rightful owner of this property." In real life a court would dismiss such a claim in an instant. If they've made no effort to claim the property for the past 15 years (in Michigan, differrent time periods in other places), then even if the deed was valid, the current resident legally owns the property by adverse possession. There is no need to even investigate if the old deed was ever valid.
Perhaps the idea that someone could be thrown out of a house that he has lived in his whole life makes for good drama. But it is precisely because of such potential drama that this law exists. Suppose someone did come up with this 100 year old deed. How would you prove whether his deed was valid or yours was? You'd have to find records going back 100 years. It's quite possible that the records are lost and it's impossible to prove. And in any case, if someone bought this house believing in good faith that the seller legally owned it, and the seller had every reason to believe that they legally owned it, and there are seemingly valid deeds going back decades, would it really be justice to throw people out of their homes because 20 years ago somebody cheated on a land sale? What if it was 50 years ago? Or 100? Or 500 years? At some point we surely have to say, If you had a claim to this property, you should have brought it up a long time ago. I suppose to the person who finds an old deed it might seem really cool, like winning the lottery, that you suddenly get some valuable piece of property for free. But the very fact that it's such a windfall highlights the injustice of it. You didn't work for it. You haven't been maintaining the property or paying taxes on it or even mowing the lawn. Why should it suddenly be handed to you?
Perhaps the most common usage of adverse possession is when there are mistakes about the location of a peoprty line. Suppose Al and Bob are neighbors. One day Al builds a fence between his property and Bob's, but he makes a mistake about where the property line is and actually builds it 5 feet into Bob's property. Bob isn't so sure about where the line is either and says nothing. 10 years later Al adds a room onto his house that crosses onto this 5 feet. Again, Bob doesn't realize that Al's house is on his (Bob's) property and he says nothing. 10 more yeas go by and Al sells his house to Charlie. Charlie buys the house thinking that the fence is on the legal property line and that the house, including the extra room, are all on the property that he is buying. Another 10 years go by and Bob has the property surveyed for whatever reason and discovers the error. 30 years after the fence was built, he discovers that it is really 5 feet over the property line. He demands that Charlie tear down the fence and demolish the portion of his house that his over the line.
A court will say no. Charlie bought this house thinking that the fence marked the property line and that the entire house was on the property he was buying. Bob has had 30 years to discover the mistake and do something about it and he did not. It's too late now. Al and Charlie both made decisions based on this mistake. In this case I'm assuming that both Al and Charlie acted in good faith. But even if Al deliberately put the fence 5 feet over the line, he wouldn't tell Charlie that.
So what if someone tries to take advantage of adverse possession laws to steal your property? There are three very simple steps you can take to prevent it. Disclaimer: I am not a lawyer and this is not intended as legal advice, but is simply a casual discussion of my understanding of the law.
One: Don't abandon property. If you buy a piece of land, and then never even visit it for 15 years, someone could move in and start living there and eventually claim title. So ... don't do that. Make sure you visit your property regularly. Having to visit once every 15 years doesn't seem like an undue burden. If you are so rich that you have many parcels of land all over the place and it's impractical to visit every one even once every few years, you should be rich enough to hire someone to check on it for you.
Two: Find out where your property line is. If your neighbor encroaches on that line -- if they build a fence on your side of the line or otherwise start using your property as if it was theirs -- talk to them about it politely. If it's just a mistake and they're decent people, they'll apologize and back off. If there's a disagreement about where the property line is, get your deeds and measure it off. If they challenge where you calculate the line is, talk to a lawyer. Personally I've never had it go as far as needing a lawyer, but I'm sure it happens.
Three: If you see someone living on your property without your permission, or coming onto your property regularly without your permission, order them to leave. If they don't, call the police and file a complaint for trespassing. Even if the police do nothing about it, having the complaint on file will show that you asserted your property rights and should be evidence in any claim for adverse possession. If someone is trespassing on your property regularly and the police don't do anything about it, you probably should call a lawyer.
© 2020 by Jay Johansen
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