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Adverse possession from two attorneys' positions.

COUNTRYSIDE: People react strongly to the concept of adverse possession: How can someone just appear, and squat on my land, and get legal title? That's theft, isn't it? Why would the law make something that wrong even possible?

Re: The exchange in "Adverse Possession Strikes a Cord ...", pp. 810, COUNTRYSIDE, May/June 2012 Vol. 96 #3. Adverse possession appeared in English common law around 1100 CE. Wikipedia says: "Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. For example, squatter's rights are a specific form of adverse possession. Because of the doctrine of adverse possession, a landowner can be secure in title to his land. Otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. The doctrine of adverse possession prevents this." [Author's emphasis.] wiki/Adverse_possession (April 15, 2012).

Individual title in land was unknown in tribal societies, especially those that were nomadic or semi-nomadic, or highly communal. Even after individual ownership became common, because land title was often an oral transaction between two persons and witnesses, and no one present was literate, few written deeds existed. And written deeds could rely on the "the old oak tree near the stream" as a boundary marker. Oak trees are cut, streams change course, and witnesses die. Controversies over land ownership and boundaries were so many and troublesome that courts began to establish consistent rules for deciding land disputes.

Eventually, courts agreed on rules that stabilized into precedents in the common law. Over time, common law frequently became part of the statutory law enacted by legislatures, each responding to its own history and circumstances.

Counter-intuitively, the law of adverse possession actually protects the present landowner. However, absentee landowners, or those who are lax in protecting their rights, may lose legal title even though they had perfect title. A successful adverse possession can extinguish the prior title or create an easement.

Look back to the Middle Ages when warlike tribes migrated and plundered through Europe and Asia, and famine and diseases like the Black Death could kill up to half the people in a province. Norse and Arab fleets raided vast stretches of coastline to loot and capture slaves. Villages and even towns were completely depopulated and returned to wilderness. Eventually people would move back in. But as often as not, the "true owner" was dead or enslaved, often along with all their kin.

Suppose a great-grandson of one of the original inhabitants turns up and claims the farm that his father said that great-grandfather left during the Black Death. The population declined to the point that great-grandfather had no work, and had to move away. Does great-grandson, on that evidence, get to evict a family that has worked and improved the land for generations? What if he produces an authentic written deed? Imagine, between illiteracy, and variability of memory, and population movement, how many land claims over boundaries, or entire estates would arise. A culture based on land ownership and tenure would suffer if land ownership or boundaries were uncertain.

So, rather than being a way of taking land away from the owner, the adverse possession law protects the present owner's title or possession, even against someone with "better" legal title, like the great-grandson and heir, who appeared 100 years later with an authentic written deed. The adverse claimant bears the burden of proof--he must prove all of several elements, including open and notorious possession. You can't just hide or sneakily use someone's land for years, and then run to the courthouse and successfully claim title to the land you were using.

But, the true owner must maintain and defend their possession and title. A prudent landowner will avoid this problem by due diligence, which includes knowing his land rights and boundaries, and promptly contesting any violation. Anything done with real estate should be done in writing, even permission to camp.

The American Indian learned that one the hard way, and even instruments in writing didn't always help. Very clear Indian claims have been set aside because non-Indian people had squatted on Indian land generations before the Indians filed suit. Lesson: Act as soon as possible.

For example: If your neighbor has fenced in some of your land, first try to work things out at the kitchen table. Discussion might reveal how you could both benefit. Have a survey done, if that will help clarify things. Consider rental or sale, or even granting a written permission or license. If that fails, give notice of the violation in writing, by certified mail, and keep a copy. You may want to record that notice at the courthouse. Keep your taxes paid up. If all else fails, and you must take action or suffer loss, file suit. Do not attempt an eviction on your own; land disputes can turn violent, as one contributor pointed out (May/June, p. 9.).

Several legal doctrines protect title, others support those who occupy or use the land, still others deny recovery to those who let things slide and do not act within a reasonable time. There are general "rules" regarding adverse possession, but each state has its own statutes or common law rules. For instance, in Montana, successful adverse possession also requires that the adverse claimant prove he paid the taxes.

Lesson: When two people both claim some right to land by possession, use, or deed, public policy will determine who prevails. Adverse possession is controversial, and some argue that the concept should be eliminated. Investment groups wielding tax liens are now a greater danger than Viking raids, and all land transfers must now be in writing. But prescriptive easements are common, absentee landownership and homelessness are still problematic, and plague will always be a danger, especially given the agribusiness industry's creation of "superbugs" (a side effect of using massive amounts of antibiotics in livestock). The Big One in California could be worse than Fukishima. Our civilization is not immune from natural or man made disaster. And human beings still make mistakes.

If you drive a car, you surely know the rules of the road in your state. If you own land, you should know the basic land rules. In either case, ignorance and inattention can cause a wreck, and the consequences can be serious.--Mark Mackin, Attorney, Montana

COUNTRYSIDE: I am a lawyer in Michigan, willing to venture a cursory opinion on the question concerning adverse possession in the March/ April 2012 issue. First, a disclaimer: I am not giving legal advice or undertaking anyone as a client. I am simply giving what I believe would be the likely outcome of a hypothetical lawsuit predicated on the fact pattern presented.

Now for the opinion: An essential element of adverse possession is that it be adverse. Accordingly, any possession of land undertaken at the permission of the owner is not adverse and can never result in title no matter how long it lasts.--Lorne Carignan, Swartz Creek, Michigan
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Title Annotation:Country conversation & feedback
Author:Mackin, Mark; Carignan, Lorne
Publication:Countryside & Small Stock Journal
Article Type:Letter to the editor
Date:Jul 1, 2012
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