Adverse Possession


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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61 Responses

  1. Avatar Burt Likko says:

    To adversely possess land at common law, the would-be owner must:

    1) Openly, notoriously, and hostilely occupy the land for “X” time,
    2) Exclude others from the land, particularly the titled owner,
    3) Improve or usefully exploit the land during his occupancy,
    4) Not be sued for trespass, ejectment, or some other remedy.

    There are easy and cheap ways to defeat a claim of adverse possession against you. Since the use must be “hostile” to the interests of the titled owner, if the tilted owner grants consent to your use of the land, your use is no longer hostile and the claim to have adversely possessed the land will be defeated.

    Many states have particular traps for the would-be adverse possessor. For instance, in California, the adverse possessor must pay all the property taxes during the initial adverse possession period, which can be something of a challenge when you aren’t sent the tax bill. It sounds like in Texas, you have to publicly file your claim in court before the adverse possession clock starts to run.

    So here’s what happens in Flower Mound, Texas — the original owner has walked away. The bank will eventually take title. If the bank is smart, it will realize that someone is living in its house. If I am right about Texas law, it can do that by running a relatively cheap court filing search. When it finds that Kenneth Robinson is living in the house, it can record a revocable license to permit Robinson to do this. Now, Robinson’s use is permissive, not hostile.

    Best of all, from the bank’s point of view, is that there is nothing Robinson can do to stop them from unilaterally granting him permission to use the house.

    If Robinson refuses to move, he will have to be evicted and yes, that is potentially expensive. And if a license is granted and then revoked, that means the potential recovery of money damages for the reasonable rental value of the house will be set aside, because Robinson will have lived there with the bank’s permission during that time. But he very likely doesn’t have any money to recover anyway, so giving up the past reasonable rental value for the time he was trespassing in the bank’s house isn’t giving up anything but phantom dollars nine times out of ten. And keeping the bank’s title clear of competing claims is worth giving up a little bit of money anyway.

    There is still the matter of getting him out of the property when the bank decides to liquidate it. Offering him “cash for keys,” while morally unpalatable, often makes economic sense in situations like these.Report

  2. Avatar Shawn says:

    The article doesn’t really give that great of an overview of the situation. Someone who is trying to claim property by adverse possession is by definition a trespasser, and the title holder can legally evict them from the premises at any time. Different states have different periods of time before an adverse possessor can claim clear title for themselves, but it is almost always a considerable length. In the interim the adverse possessor can’t abandon the property himself, is required to pay all applicable property taxes, and so forth. It can be complicated, but it’s based on the feudal concept that it’s better for land to be used and tax paid rather than lie idle, even if a tresspasser manages to end up a landowner as a result.

    Robinson may very well end up with a windfall here but if he’s paying taxes and maintaining the property like an owner would and the real owner doesn’t even care enough to kick him out over a period of some years then this somewhat archaic legal principle doesn’t seem to be leading to an unjust outcome, really.Report

  3. It is, to me, unquestionably the first scenario. I don’t have much time to comment at length, and my short comments tend to not get my point across well, but the argument is roughly as follows:

    1. The rule of law upon which any stable system of governance must be based requires a basic definition and theory of property rights.
    2. We have a basically Lockean system of property rights largely developed through the common law.
    3. Adverse possession is wholly consistent with a Lockean system of property rights, even a necessary one – it delineates a point at which the application of one’s own labor with respect to a piece of property creates an ownership interest in that property superior to the interest of the prior possessor.Report

    • Avatar Stillwater in reply to Mark Thompson says:

      Mark, where in Locke does it say that once I mix my labor with property and so establish an original claim to that property, that it is revoked simply because I – eg., – decide to relocate to another property? Doesn’t the Lockean principle apply to a) property that doesn’t have a prior claim and b) once that claim is established, isn’t that claim in some sense permanent (hence, the granting of titles by the state to prevent exactly this type of behavior)?Report

      • As memory serves, Locke stated that a person’s property right didn’t entitle them to let the good spoil (with his example being crops left to rot in the fields) and that in such a situation the property could be seized by those who would mix their labor and put the property to productive use.Report

        • Avatar Stillwater in reply to The Waterman says:

          Thanks. {{riffling thru the Second Treatise}}. I’ll look it up.Report

        • Avatar Stillwater in reply to The Waterman says:

          The Waterman, I think the passage you’re referring to is the following:

          But if either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other.

          I think this is ambiguous between two readings. One in which possession of the grass and fruits may transfer to another; the other in which the property on which the fruits and grass are cultivated tranfers to another. I always understood it be the former. Which isn’t to say that Lockeans are wrong to opt for door number two.Report

      • I have not read Locke in many, many years, but I can think of two possibilities:

        1. The so-called “Lockean Proviso,” requiring that property owners leave “enough and as good in common . . . to others.” If you’re just letting property go to waste and someone else makes a demonstrated use for that property, then your prior property rights cannot put an end to that use.

        2. The issue here is that you have two legitimate claims of property rights under a labor theory of property – the older claim of the original owner and the newer claim of the adverse possessor. Locke was not, to my knowledge, an advocate of a “first possession” theory of property rights. Adverse possession rules then are necessary to determine when the rights of the adverse possessor become superior to the rights of the original owner.Report

        • I think Locke was looking for a solution to the illiquidity of real estate in an agrarian society. English law was built on prior possession, which meant lords and the leftovers from feudalism. [See also “primogeniture,” that only the first-born son inherited the land.]

          This led to an absurd system where indeed someone could own land that went to waste. Not so much after real estate becomes liquid, where money is king and not the king and the lords.

          Thoughts and citations here

          Basically, the Labor Theory of Value becomes non-applicable as all property becomes liquid. Even unused land has theoretical monetary value and the LTV claim to it disappears.Report

          • An interesting and challenging link, Mr. Van Dyke, although it seems to me that there is a large leap involved in the conclusion you put forth that money and liquidity renders the LTV inapplicable. I shall chew it over a bit more, but one clear counter is simply that although money confuses the practical application of the LTV (which is, after all, a normative theory more than a positive one) on an historical basis, it does not prevent its application on a present basis.

            I think the link you provide goes too far in the other direction, suggesting that because of the problems with implementing it on an historical basis, Locke would have us essentially abolish private property altogether, leaving everything in the Commons (though maybe I’m misreading here) and would say that the very notion of rent is reprehensible. More likely, I suspect, is that the focus should be on whether the owned land is actually being used by the owner in some fashion.

            But now I am arguing from presumptions that I have not verified and of which I am uncertain.

            Regardless, so long as we accept that the LTV is more or less the basis for our system of property rights, then adverse possession rules are a necessary part of that system.Report

            • MT, I believe LTV was booted a long time ago as unworkable.

              If real estate is fungible—and it is—you work your ass off and buy the land, like Gary Cooper in Sergeant York. [Actually, he won the last bit in a turkey shoot, iirc.] Under the old English scheme, though, money couldn’t be exchanged for property, which sent Locke down the dead end of LTV, a better theory than real estate being illiquid.

              I’m not a Locke scholar but what I got from the link is there’s more to Locke [or more uncertainty about what Locke said] once you go past the cherry-picked quotes customarily offered as Locke vs. capital.

              In my view, the development of capital as the instrument of full liquidity was liberation from the residue of feudalism. [Even LTV binds you to the land.]Report

              • I’m not a Locke scholar but what I got from the link is there’s more to Locke [or more uncertainty about what Locke said] once you go past the cherry-picked quotes customarily offered as Locke vs. capital.

                Hrm…I got from the link that there’s more to Locke once you go past the cherry-picked quotes customarily offered as Locke in accord with capital (and there most certainly is). I don’t think a lot of people, especially the libertarians argued against in that piece, typically cite Locke for much more than a justification for capitalism.Report

              • My interest in Locke is what the Founders thought he said, so I dunno. The Brits didn’t care much about him and the continentals breezed past him with the more radical philosophes.

                So what the “true” Locke sez is only of academic interest, in my view. Adam Smith [1776] will do for capitalism, although we’d be in agreement that Smith is often misused as the Apostle of Unbridled Capitalism when he really was quite into providing for the poor.

                That Locke established the right to property as necessary and good is about all we can take away, since the LTV is unworkable. As one of the linked essays notes, with the evolution of money and property becoming fungible [interfungible?], Locke is not dealing with the factors as they are today. For good or ill in 2011, everything has a price.Report

    • Also, implicit in the above is that the specific requirements to obtain adverse possession as outlined in Burt’s comment and as memorized by every first year law student are themselves entirely consistent with this view of property rights.

      “Open, notorious, and hostile” demonstrates that any of the adverse possessor’s actions on the property are entirely attributable to the adverse possessor and not just another means of the original owner exercising control and dominion over the property. Ditto with the exclusion of others from the property.

      “Improve or usefully exploit the land” demonstrates that the adverse possessor has in fact put labor into the property that would entitle him to ownership under a Lockean theory of property rights.

      “Not be sued for trespass, ejectment, or some other remedy” assures that the grant of title to the adverse possessor is in accordance with the rule of law.Report

  4. Avatar Mike Schilling says:

    This gives the mortgage holder an incentive to work something out with the owner instead of foreclosing on a property that’s clearly of no value to them. Good.

    (See, when an investor does something like this, it’s called “arbitrage”. When a regular person does it, he’s a grifter.)Report

    • Avatar Stillwater in reply to Mike Schilling says:

      (See, when an investor does something like this, it’s called “arbitrage”. When a regular person does it, he’s a grifter.)

      Yes. File it under ‘Further Explorations in the Language of Oppression’. And some people still wonder who’s the aggressor in the class war.Report

      • Avatar Jason Kuznicki in reply to Stillwater says:

        What an extraordinary display of prejudice from both of you.

        I put forward two potential responses without expressing any preference whatsoever toward either. Both came directly from the quoted article itself, not from my evil imagination. And look what you did with them. Everything — even just an open-ended question — is a chance to smear me. Shame on both of you.

        I suppose you imagine that a world of easy adverse possession is one in which the meek will inherit the earth. Well then — take a seat next to that horrible money-grubber Mark Thompson. He likes it too. And I hereby denounce you both as evil corporate shills.

        Me, I’m not so sure. I rather think that if adverse possession were easy, it wouldn’t necessarily be the Kenneth Robinsons of the world who would benefit. More like Bank of America will be opening a new branch suspiciously close to where you live. Who else do you imagine has the resources, knowledge, and institutional wherewithal to carry out adverse possession systematically?

        There are good reasons, you know, that we are exceptionally kind to people who have a hard time making their mortgage payments.Report

        • Just to clarify- I don’t think that adverse possession should be easy. It should not be easy, and in reality it is anything but easy. The linked article, unfortunately, gives a highly misleading portrayal of the ease with which one may obtain title by adverse possession. To suggest that a lien holder would, after having undertaken the expense of a residential foreclosure, be unlikely to undertake the expense of ejecting a trespasser . . . well, the reporter may as well be living on another planet. In my experience, lenders do not take threats to the value of their collateral lightly.

          The impression given by the article is that adverse possession is as simple as “file a notice, occupy the joint,and in 10 years you’ve bought a house for $16.”. In reality, if the bank tries to do just about anything with regards to the property (and they will-otherwise the foreclosure was pointless) during a 10 year period, the bank is going to keep title. By and large, the scenario is not much different from one where the bank forecloses, but the original owner refuses to vacate.

          So to get title by adverse possession, the adverse possessor has to:
          1. Break in to the house once it is unoccupied.
          2. Move into the house and maintain it for a decade.
          3. Occupy the property in a way that the title holder would reasonably be expected to become aware of the occupation.
          4. Avoid suit for a decade by the title holder.
          5. Exclude the title holder from the property for a decade; and
          6. Never get the consent of the title holder for the occupation.

          In other words, you’re only getting title if you put some meaningful work into the property over the course of a decade, during which the title holder does virtually nothing to suggest that they give a crap about the property.Report

        • Avatar Mike Schilling in reply to Jason Kuznicki says:

          Odd how I smeared you without mentioning your name or even referring to you.Report

          • Avatar Stillwater in reply to Mike Schilling says:

            I was only smearing Mike.Report

            • Avatar Mike Schilling in reply to Stillwater says:

              Yeah, I thought “grifter” was an unfair characterization. Is criticizing things you say smearing you?Report

              • Avatar Mike Schilling in reply to Mike Schilling says:

                (Meant to reply to Jason, of course.)Report

              • Avatar Jason Kuznicki in reply to Mike Schilling says:

                I said very, very clearly that I didn’t know what I thought. I meant that. I offered two possibilities without endorsing either.

                You presumed that I favored one choice, inferred a whole bunch of other stuff from it, and blamed me for it. So yeah. Pretty unfair. But then, offhand I can’t think of a single constructive comment that you’ve ever made at this site, so I can’t say I’m surprised.Report

              • Avatar Mike Schilling in reply to Jason Kuznicki says:

                Now you’re saying that criticizing words you put in other people’s mouths’ is smearing you.Report

              • Avatar Jason Kuznicki in reply to Mike Schilling says:

                No, I’m saying that you put words in my mouth and proceeded to blame me for them, which is after all perfectly typical of you.Report

              • Avatar Stillwater in reply to Mike Schilling says:

                Jason, this is only partly my fight, but maybe this is helpful: you are correct that it was you who used the word ‘grifter’ first, but I certainly didn’t – nor do I now – think that you used that word unconsciously, or from a class-identity pov. You used the word exactly as it is conventionally used. And that was the point: that we have nice tidy negative categories for the not-rich and nice tidy positive categories for the rich, when they’re engaging in type-identical behaviors.

                In fact, the way you used the word in the OP, with the emphasis on ‘grifting’ made me think that you were actually consciously aware of the connotations, and making that a component of how we judge the issue.Report

              • Avatar Mike Schilling in reply to Mike Schilling says:

                If you can point to where I attacked, referred to, or in any way mentioned you, I might understand what you’re going on about.Report

              • Avatar Jason Kuznicki in reply to Mike Schilling says:

                You know damn well what I’m going on about. Every time I post, on any subject whatsoever, you come along with some snide comment to the effect that all I care about is the rich getting richer.

                It’s false, it’s tiresome, and you’re doing it right here too. Don’t play dumb.Report

              • Avatar Jason Kuznicki in reply to Mike Schilling says:

                Stillwater —

                The word grifter is to my knowledge class-neutral. It does not imply a lower class status, not at least going by any dictionary I’ve checked out on the issue.

                Of course, you’re free to say that I’d champion the banks if they were doing the exact same thing. But that’s the kind of malevolent imagination I expect out of Mike, and not so much out of you.Report

              • Avatar Stillwater in reply to Mike Schilling says:

                No, you misunderstand me. I didn’t attribute any of that to you.

                How to make clear…

                The use of the word ‘grifter’ in the OP context lent itself to criticisms that were entirely independent from your use or intentions. You used it exactly as it is normally used. In the context, it presented an stark contrast between how the grift is conventionally understood.

                Like Mike has said – and I agree with him on this – the comments had nothing to do with you. They were about language and conventional beliefs.

                Am I only digging myself deeper here?Report

              • Avatar Stillwater in reply to Mike Schilling says:

                The word grifter is to my knowledge class-neutral.

                Actually, reconsidering things a bit, if you’re committed to the above, then, yeah, there is a substantive disagreement between us.Report

              • Avatar Jason Kuznicki in reply to Mike Schilling says:

                So I’m obliged definitionally to say that Bernie Madoff isn’t a grifter? And that he’s a hero?

                Somehow I don’t think you’re playing fairly.Report

              • Avatar Stillwater in reply to Mike Schilling says:

                There’s subtle shadings and connotations to a word, yes?, more than what its literal meaning imply. Isn’t that right?

                You and I can use the word to apply to very respectable people in a class neutral sense. If you agree that CW and somehwat standard usage may not match up with our understandings of the term, and that we can both understand that the word will connote different things in different contexts, then there is no disagreement between us.

                If you’re committed to the view that no one,especially the media, uses the word ‘grifter’ in a negative way which is also class oriented, then there is a disagreement between us.

                Tho that is changing, as more people are very vocal about, eg., Grover Norquist being in on the grift.Report

          • Avatar Jason Kuznicki in reply to Mike Schilling says:

            You used the word “grifter,” something that previously only I had done. That’s enough, so don’t play games. If I said the guy with the green spiky Gravatar with the squares in the corner was a communist, I’d be doing just as you’d done. But it would be unseemly. Wouldn’t it?Report

        • Avatar Murali in reply to Jason Kuznicki says:

          Erm… what just happenned?Report

          • Avatar BSK in reply to Murali says:

            I am, in no way, shape, or form, an expert on Locke specifically or property rights in general. However, reading what is written here, I have a question regarding the “productive” use of land…

            Who is to define what is productive? I might own acres of what could be fertile fields, but I prefer the aesthetics of untouched earth. Could someone argue I am not using it productively? Perhaps I keep some cows on my land that I eventually intended to slaughter for beef. Evidence is pretty strong that land is used far more productively and efficiently when crops are grown on it. Does this make my usage unproductive? Perhaps I let my apples rot on the branches. But I never intended for the trees to be fruit bearing. I planted them to provide shade and figured whatever apples I got was a bonus.

            It seems very difficult to ascertain when the use of property seizes to be productive. And even more problematic that an argument is put forth that I somehow abandon my property rights because I’ve chosen to use the land in a way contrary to how others think I should use it.Report

            • Avatar Murali in reply to BSK says:

              BSK, even though I think you responded to the wrong comment, I think you’ve got something there.

              Most productive use of the land is the excuse under which a lot of eminent domain bs gets pushed through.

              i.e. while intially sounding like a plausible justification, it fails as it justifies more than just adverse possession.Report

            • Avatar Stillwater in reply to BSK says:

              I agree. That’s why upthread I was indicating that I don’t think Locke meant that letting ‘grass and fruits’ layer up on the land constituted a sufficient condition for another to legitimately claim that property. If he did, then the LTV conflicts with the otherwise obvious right to property.

              Or, saying that another way: the right to property even on Locke’s view cannot simply reduce to using the property more productively than another person is/would.Report

  5. Avatar llama says:

    The other big point is that adverse possession prevents property from becoming “orphaned.” That is, no one can locate the title holder of record, and she no longer shows intent to use/occupy the land. Obviously this was a bigger problem in agricultural societies that exhibited high rates of property owner absenteeism, but the problem still occurs today. For example, if you buy a lot that has a sliver of land on one side that is not properly part of your lot, but that no one evidences an intent to occupy for a statutory period, say 10 years, it makes perfect sense to allow the neighbor to perfect to that land to prevent it from becoming permanently inalienable due to negligence.Report

  6. Avatar Tim Kowal says:

    I also have two minds on this story. Yes, on the one hand, we have a defined system by which we acquire title to property, and Ken Robinson is obviously an opportunist taking advantage of present economic conditions. On the other hand, as Mark alluded to, the natural right to property is based on labor, on some physical connection between man and his land. Our present system treats land as a commodity, where its value to banks is only reflected on paper rather than in providing food or shelter or space to conduct productive activity. By permitting banks to have paper ownership of property, they have amassed near total control over all privately owned property in this country. If we do not require banks to exert any natural, productive ownership of property, we ought to expect them to scrupulously protect their paper ownership.

    More simply put, “property rights” has powerful symbolic force in our legal and economic culture, but the reason it is so powerful has little to do with the “tricks on paper” that banks use to control property.Report

    • A quibble:

      Yes, on the one hand, we have a defined system by which we acquire title to property, and Ken Robinson is obviously an opportunist taking advantage of present economic conditions.

      Part of the point here is that adverse possession is a small but necessary and important part of that defined system. It is not taking advantage of a loophole in that system, it is a usage of that system that is specifically contemplated by that system.

      Is this man trying to get something without putting up capital? Indubitably. But so what? Putting up capital is hardly the only way of justly acquiring something. Indeed, for this man to actually acquire title to this property, he will have to:
      1. Risk ejectment and possible penalties for tresspass which in either case will prevent him from acquiring title at all (and he should have to bear these risks – as Ryan points out correctly below, he really is a squatter until title is obtained).
      2. Maintain the property and invest labor into improving it for a not-insignificant period of time. The opportunity costs involved with this are quite real, and while his neighbors may complain about him getting a house seemingly for free, the fact is that living next to an occupied and maintained house increases the value of his neighbor’s homes when compared to the alternative of an unoccupied and neglected house.

      This man is not trying to get something for nothing; he’s trying to get something without having to put up capital. There is a huge moral difference between the two concepts.Report

      • A quibble-back:

        If adverse possession is part of our “defined system of property rights,” it seems an antiquated one. Our current system is, for better or worse, of the “tricks on paper” breed. Adverse possession seems either anachronistic or at least out of place in highly developed areas. Natural property rights disfavors letting useful land go under-used by its owner. But it also disfavors unpredictable and arbitrary rules of ownership. Adverse possession strikes a balance to promote the highest and best use of property with a minimum of disruption in expectations.

        What Kenneth Robinson is doing, however, seems more like playing in the existing, “tricks on paper” sandbox by filing the adverse possession paperwork. Assuming he will just live there and not substantially improve the property, he’s just getting a swanky, rent-free place to live until the bank takes legal action to evict him. That’s not a Lockean, adding labor to the soil type of property claim.Report

        • Adverse possession seems either anachronistic or at least out of place in highly developed areas.

          I think the opposite – highly developed areas are where the concept has the most potential to do good since abandoned, unused real estate in such areas quickly becomes a real blight on the community, a potential safety hazard as it falls into disrepair, a home for an unending stream of vagrants, etc. But if someone occupies that property in such a manner that they will be eligible to take title via adverse possession when enough time has passed, what you get is a constantly occupied and maintained home with one specific and consistent group of occupants.

          Assuming he will just live there and not substantially improve the property, he’s just getting a swanky, rent-free place to live until the bank takes legal action to evict him. That’s not a Lockean, adding labor to the soil type of property claim.

          This is a rather big assumption to make, no? For starters, if he is maintaining the property at all, then he really is adding labor to the soil, and certainly everyone is left better off if the home is occupied and maintained than if it is unoccupied and allowed to fall into disrepair. Second, if he in fact does not maintain the property or add any value to it, then unless Texas has completely abandoned traditional adverse possession rules, he will not be eligible to obtain title to the property and he can be ejected even after the expiration of the adverse possession period.

          Third, you have absolutely no clue as to this man’s motives. In fact, the article (which is far from sympathetic to the adverse possessor) suggests that it is unlikely he will ever be ejected by the bank, and indeed that people like Robinson count on the bank being unwilling to eject them for the 10 years it takes to obtain title by adverse possession. If he was just trying to bide his time until the bank kicks him out, then he wouldn’t have filed the notice at all – why place the owner on notice that his property is being occupied by a trespasser unless you are hoping to eventually gain title? Otherwise, filing notice just seems like a good way to make sure that the owner tries to kick you out sooner rather than later.

          Simply put, if this man is not trying to make a “Lockean, adding labor to the soil type of property claim” then this article would never have been written, because he would not even be eligible for title by adverse possession.Report

          • Denmark vs. the hippie squatter freeloaders of the Freetown of Christiania. Lawless, criminal, happy, anarcho-libertarian. Probative & amusing.


            Christiania, which takes its name from the Christhavn district in which it sits, began as a protest against the lack of affordable housing. The far left grandly championed the squatters. “Christiania is the land of settlers. It is so far the biggest opportunity to build up a society from scratch,” wrote well-known counterculture activist and journalist Jacob Ludvigsen as the squatters set up. Dilapidated army barracks were transformed into houses, and warehouses were outfitted with printing presses. Kindergartens were created, more houses built, stores and clinics opened, and a local post office was opened. No one paid utilities, rent, or taxes. Money was doled out equally, and smoking hash was as common as blinking. The “Freetown of Christiania” designed its own postage stamp, its own constitution, and its own flag. It had its own currency. It was known for its freewheeling lifestyle and funky, brightly painted houses.

            Eventually, Christiania agreed to pay for utilities and a nominal tax per house. But the area, centrally located and with a pristine waterfront, has long been eyed by developers.

            “When I first came here, I was Red. I was for a revolution,” says Hjordis Oppedal, an artist who moved to Christiania in 1976 and maintains a studio there. “At first I didn’t like the drug users here, the addicts. But I realized all people have rights and I learned to keep an open mind.” Yet the hard drug use spiraled out of control, and an underworld of dealers swooped in to tap the growing market. What began as an anticapitalist utopia became a battleground of drug lords fighting for real estate. Police began regular raids on the drug-laden kiosks along Pusher Street, the commune’s main street.Report

    • Avatar Art Deco in reply to Tim Kowal says:

      By permitting banks to have paper ownership of property, they have amassed near total control over all privately owned property in this country.

      If I am not mistaken…

      1. About 1/3 of residential homeowners have paid off their mortgages. They own their property, free and clear.

      2. The bank does not own the property except as a consequence of foreclosure. The bank owns a promissory note secured by the property.

      3. The bank does not own the note for long, as a rule. It is usually sold to the secondaries like Freddie Mac within a couple of years.Report

    • Avatar Mike Schilling in reply to Tim Kowal says:

      an opportunist taking advantage of present economic conditions.

      That is, a businessman.Report

  7. Avatar Stillwater says:

    On re-reading: Maybe I’m confused here. How is someone walking in a claiming a property that someone already walked away from a disincentive from walking away? Initially, I thought you were saying that it’s a disincentive for banks to let people walk away. If so, then I’d wholeheartedly agree .Report

    • It is a disincentive from walking away in general. Here, when the owner was foreclosed upon due to a presumptive inability to pay, the bank became the owner, so in this particular case (and probably most cases), it is the bank doing the walking away. But there have historically been other cases where somebody obtains title to a (perhaps mostly unimproved) plot of land that they just never visit or do anything with, maybe because they’re a speculator, or they just plan on eventually building a vacation property but never do, or whatever. Adverse possession provides an incentive to them to either “use it or lose it.”

      The more common case of adverse possession, though, is probably just going to be where a neighbor builds something that encroaches upon a piece of property. The property owner in such a case may not realize that the building encroaches on the owner’s property, perhaps because they don’t know exactly where the property line runs. Then, when the property owner needs a survey of his property taken, he discovers that the building is an encroachment. Adverse possession rules then determine whether the building must be taken down or can remain.Report

      • Avatar Stillwater in reply to Mark Thompson says:

        Thanks for clearing it up – a bit 🙂

        All this reminds me of a case in Boulder where a couple owned an empty plot of land adjoining theirs which was used as a path to access the hiking trails out beyond. Another fella claimed it – somehow – on the grounds that he ‘used’ the land and was ultimately awarded the land by the local judge. (I don’t know what happened on appeal.) The couple had planned to build a new home there.Report

        • That sounds like an adverse possession case – the big questions are how the guy “used” the land and whether people other than this person “used” it for similar purposes.Report

          • Avatar Stillwater in reply to Mark Thompson says:

            I looked into it a bit. One couple claimed that they’d been using the path continuously for 26 years. When another couple bought the property, they put a fence up that (I think) eventually was removed. That was some few years before the suit began. In the end, they settled. The adverse possessors (?) were awarded a 5 foot wide strip running the length of the property while the owners retained the rest. The settlement was decided when it was discovered that Boulder law required 18 years of continual use without notification or interruption by the owners. Placing the fence, even for a short time, required the use-time to be reset. So in the end, it seems that the APers didn’t have a claim after all, yet were rewarded with a path.

            Now that’s effed up.Report

  8. Avatar Ryan says:

    This is squatting, pure and simple. You can’t just say “Hey, I’m adversely possessing this and you can’t kick me out!” It doesn’t work that way. Possessing land adversely is technically trespassing for the entire period of possession before the adverse possessor files suit to quiet title.

    I really don’t see this as being all that big of a deal. Acquiring property via adverse possession takes a long time, frequently ten or more years, and many states require that the adverse possessor pay all back taxes before he can take title to the property.

    It’s a rare property that’s going to sit completely vacant for long enough to be acquired this way.Report

    • Avatar llama in reply to Ryan says:

      As pointed out above, up and until an adverse possessor perfects title, he is, as you correctly pointed out, a squatter. That means the opposite of what you imply. It is much easier to evict a squatter than for the squatter to perfect title via adverse possession. Moreover, in most states by trying to kick out a squatter you will destroy the squatter’s adverse possession claim.

      I don’t know, in this instance, why neighbors are mad. Their land values have been buttressed by a person maintaining a house on their block. Empty, unmaintained houses bring down land values.Report

      • Avatar Mark Thompson in reply to llama says:

        I don’t know, in this instance, why neighbors are mad.

        The article only actually quotes one anonymous neighbor, so I don’t know that the claim in the article that his neighbors are all mad about it is terribly accurate (it may be, but it doesn’t provide enough facts to reach that conclusion). That said, jealousy can be a pretty powerful emotion. So can something else that may be relevant here, which I shan’t mention.Report

  9. Avatar mac says:

    There are other terms related to adverse possession under slightly different circumstances.
    Salvage: if a boat is abandoned at sea, it becomes available to anyone with the ability to use it. This is wise because the vessel is otherwise complete and potentially hazardous loss.
    Homesteading: unused land is available for anyone who can productively claim it.

    In both cases, the law falls on the side of promoting the general welfare. Adverse possession is a similar general good. (Consider the opposite case, where an owner keeps the land I’m terrible condition, paying property tax on its current next-to-worthless value. In that case the neighbors are essentially hostage to the delinquent owner.)

    There would be a wonderful turnaround of justice if, say, the entire Navajo Nation moved to Detroit and claimed the land under adverse possession.Report

  10. In the first scenario, the law reforms the culture: The specter of adverse possession prevents people from abandoning property. Instead, after having this sort of thing brought to their attention, they decide either to stick with the property or not to acquire it in the first place, given that “just walking away” begins to look less attractive as a possible future option.

    I don’t think I understand this. Why would a homeowner, finding that they cannot pay the mortgage, not leave because it’s possible someone else might move in and get the home from the bank?Report

  11. Avatar D.A. Ridgely says:

    The first comment roughly comports with my admittedly vague recollection of the common law of adverse possession. What I recall is the mnemonic OCEAN, that a claim of adverse possession legally sufficient to give the new possessor title must be Open, Continuous, Exclusive, Adverse (to the title owner’s interest) and Notorious (roughly the same as Open, probably to make the mnemonic work).

    Bear in mind this law derives from a society in which land was the only real source of wealth and power. It made sense, and still does up to a certain point, that land not be left fallow in cases of actual abandonment by the rightful owner. In a sense, it’s simply a real property example of the general legal principle of laches, that if one “sleeps on his rights” long enough the courts will thereafter refuse to enforce them.

    Land isn’t the only or even the principle form of wealth now, so the rationale for preventing land to fall into disuse is not nearly as strong as it once was. That argues, I think, against retaining a law of adverse possession. On the other hand, tax records, surveys, deeds and titles, etc. are far more accurate and open evidence of real property ownership than existed when the law arose. One can argue that the near impossibility of any reasonable, prudent owner being wrongfully deprived of property in which he has any interest, the occasional valid claim of adverse possession may still have some usefulness.

    Probably the most important point, in any case, is that rights in property (indeed, even what can or cannot be property) are mutable and that the “bundle of rights” we call property ownership has changed and will probably continue to change, sometimes for what I think are perfectly legitimate reasons, sometimes not. (E.g., at common law title to real property extended, in theory, to the center of the Earth and up to the heavens. Good luck trying to sue an airline for trespass when it flies over your backyard.)

    There is no clearly right answer to your question (not that I think you thought there was) because there are no absolute rights (ethically or legally) in play. The law is almost always in some sense about balancing competing interests and adverse possession is no exception.Report

  12. Avatar Steve says:

    Flower Mound, Texas’s own Kenneth Robinson adverse possession class coming soon!!!

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