Friday, February 10, 2006

Adverse Possession – Modern Day Land Grab for Squatters?

By Glen Bell

I keep attending real estate classes where the concept of “Adverse Possession” comes up. The idea of a land grab always comes to mind with some of the newer agents. We all have this image in our mind of squatters from the old western movies putting up stakes on the open range to claim the land as their own through possession. It’s a similar idea, an idea that you rarely hear about these days.

In fact, everyone that I have ever talked with knows of no one who has ever successfully attained property through this method, with but one exception, myself.

First of all; “What is Adverse Possession?” The classic definition of adverse possession is; “A method of acquiring title to real property through possession of the property for a statutory period under certain conditions by a person other than the owner of record.” For an example using a legal precedent, view the article entitled; “The Nuts and Bolts of Adverse Possession," written by Christopher Schwindt.

There are five essential elements to this process;

1) Open and notorious occupation. It does not require residency on the property.

2) Continuous for five consecutive years.

3) Hostile to the interest of the true owner and without any degree of permission.

4) Held under a claim of right or color of title. Claim of right – Adverse possessor treats the property as his own because he feels that he is the owner of the title. I have a right to this property! Color of title – Adverse possessor holds document appearing to give good title, such as a forged deed, invalid will, etc, but it does not.

5) Payment of taxes for five consecutive years.

My grandmother purchased two lots in the Oakland Hills with her brother back in the 1930’s. The property was off of Skyline Blvd with beautiful views. Their dream was to one time build and live up in “the hills.” They even placed a small RV on the land where one of her sons stayed and lived for a brief period.

“Uncle Joe” owned the property after my grandmother passed away. He had lived in New York all of his life. The Bay Area, for him, was only a place to visit on occasion and, on one such occasion, he decided to “sell” his property real cheap to his nephew’s four boys, (myself and my brothers).

So we bought the two lots for what he and my grandmother had originally paid. This amounted to a couple of thousand dollars. This was back in the late 1960’s. It was "Uncle Joe's" way of leaving us, “the kids” something.

We immediately had it surveyed so that we could see what exactly we had “inherited.” We’d drive by on occasion to see what if anything was going on in the area, to walk the land and, finally sit at the property's edge to look at the panoramic views of the bay. There were no sewer hook-ups, no water and no electricity in the area at that time. The idea of building one day, once the utility services were in, was an appealing dream. We continued to pay the property taxes as had my grandmother and “Uncle Joe” had done since the 1930’s, but, as time went by, we made fewer and fewer trips to the property.

It wasn’t until years later when we put the property up for sale that we discovered there was a “cloud on title.” The property had been purchased from a Delaware Corporation, which we soon discovered was defunct.

There was only one deed that we could find, describing only one lot. In order for us to clear this up, we approached Richard Waxman, our attorney. Rick, now one of the managing partners of Wendell Rosen in Oakland, talked to us about taking a quiet title action. This is a court action brought to establish title and to remove a cloud on the title.

We were given the above guidelines. The property was again surveyed. A fence went up in the front of the property with a sign posted for the “world” to see our claim of ownership. We spoke with neighbors to see if any claim other than ours was even a remote possibility, and found nothing.

Finally after a five year period, we felt that we had established through “adverse possession,” ownership of the property. The case went to court and although it was an unusual procedure, even for the judge, (her first such case), it was made so very obvious to her that there were no other claims to this property but ours. The court awarded us title and the property was eventually sold.

This is such a rare procedure. Again, I have heard of no one, other than ourselves, ever having successfully claimed property in this manner. What we had in our favor was the truth, that the property was indeed ours. Adverse Possession was only a means to clearing title.

The point of the story is that such a thing can happen. It is possible. The intentions of the law were to protect people like us, however, it does open up the possibility of land being taken without your knowledge if you are not careful. Leaving land that you own alone for long periods of time without improvements could run the risk of loss by such a quirky law.

So, just in case, for those of you with concerns of ever having this remote possibility ever happen to you, I’ve included an article for you to take a look at as a precaution, “Understanding – and Avoiding – Adverse Possession" written by Benny Kass.