Adverse possession. What problem does it solve?

[T.Lex]

Constitutional stuff is fun for me and seldom (but not never) what I get paid to do. I'll through in my 2 cents on those issues.

...I'm going too need some $$$ to look closely at adverse possession.

In these days of plats and HOA common areas, it surprises me that this stuff doesn't come up more often. Professionally, I've seen what happens when there's a discrepancy between the zoning, the plat, the survey, and what got built. It isn't pretty. And it certainly isn't simple.

 

[HoughMade]

In these days of plats and HOA common areas, it surprises me that this stuff doesn't come up more often. Professionally, I've seen what happens when there's a discrepancy between the zoning, the plat, the survey, and what got built. It isn't pretty. And it certainly isn't simple.

One of my former colleagues did this stuff all the time. He always had 2 or 3 adverse possession cases going.

 

[ChristianPatriot]

Oh the terrible irony of a horribly bloated government making laws to try to prevent waste....

 

[HoughMade]

In all fairness, these laws have been around for a long, long............LONG time. here's a quote from an Indiana case:

The common law doctrine and application of adverse possession has a long history. As early as 2250 B.C. the Code of Hammurabi discussed adverse possession and the misuse of land, including provisions that punished land waste, rewarded long-term development, and allowed one who worked the land of another for three years to take and keep the land... In England, the history of adverse possession can be traced back to the Norman Conquest in 1066... The common law doctrine of adverse possession was applied to resolve land disputes between colonists in Virginia as early as 1646, where it was used “in an effort to help resolve the proverbial conflicts between speculators and squatters.”... The first statutory recognition of adverse possession in the New World appeared in a 1715 statute of limitations in North Carolina.

Fraley v. Minger, 829 N.E.2d 476 (Ind. 2005).

Also, while I do not favor big government, I adore a government that accomplishes little. A government that wastes time rather than makes law is usually a better government than ones that is highly efficient in making new laws.

 

[jamil]

Constitutional stuff is fun for me and seldom (but not never) what I get paid to do. I'll through in my 2 cents on those issues.

...I'm going too need some $$$ to look closely at adverse possession.

I didn't post a question about advice. I've heard some stories. And I appreciate hearing what the INGO attorneys think about it before I completely write it off as an outdated relic kept around to give attorneys more billable hours.

So far I'm unconvinced it has much use beyond that. As long as people aren't breaking laws or various ordinances, I don't think it's anyone's business how much or little someone uses their land. As far as boundary disputes, what's recorded at the county clerk's office should rule. If you built that shed on someone else's property, well that should just be too bad for you.

 

[T.Lex]

So far I'm unconvinced it has much use beyond that. As long as people aren't breaking laws or various ordinances, I don't think it's anyone's business how much or little someone uses their land. As far as boundary disputes, what's recorded at the county clerk's office should rule. If you built that shed on someone else's property, well that should just be too bad for you.

This is a very modern perspective, for which I don't really fault you.

Go back to the days of westward expansion, though. Someone could buy from the federal government huge tracts of land that no one wanted. Then, when the settlers came, demand huge amounts of money that they didn't have. They'd settle down, regardless - either ignorant of or ignoring - of the primary claim. They'd hunt and farm the land and start communities. They could be there a VERY long time, putting the land to good use, before the real owner became aware of it.

That there are still cases about it (and up in Hamilton county, there are also issues with farm leases and other kinds of handshake agreements) says that it isn't really anachronistic at all.

 

[HoughMade]

I just learned what the "right hand rule" is.

 

[jamil]

This is a very modern perspective, for which I don't really fault you.

Go back to the days of westward expansion, though. Someone could buy from the federal government huge tracts of land that no one wanted. Then, when the settlers came, demand huge amounts of money that they didn't have. They'd settle down, regardless - either ignorant of or ignoring - of the primary claim. They'd hunt and farm the land and start communities. They could be there a VERY long time, putting the land to good use, before the real owner became aware of it.

That there are still cases about it (and up in Hamilton county, there are also issues with farm leases and other kinds of handshake agreements) says that it isn't really anachronistic at all.

We have records. Whose property is it? Well, let's trot on down to the county records and see what the deed on file says.

 

[T.Lex]

We have records. Whose property is it? Well, let's trot on down to the county records and see what the deed on file says.

Which is only part of the issue. Over the course of 10 years or more, the adverse possessor might've improved the land, made it more profitable, etc. Should the title holder receive the benefit of those circumstances for free? End up in better shape than when he started?

 

[jamil]

Which is only part of the issue. Over the course of 10 years or more, the adverse possessor might've improved the land, made it more profitable, etc. Should the title holder receive the benefit of those circumstances for free? End up in better shape than when he started?

Let's live in a world without adverse possession for just the minute it takes for considering this. Why would you spend money improving property you're not sure is yours? And if you're sure it's not your property, why would you spend money improving someone else's property? And if you wrongly believe it is your property, why should the land owner lose his property because you didn't bother to check the records to make sure it's yours before spending your money to improve upon it?

I think lawyers like to believe there's some noble purpose, and perhaps there was in Hammurabi's day. But now, I'm pretty sure it's really about the billable hours. If adverse possession goes away, you guys lose on both ends. People have to hire you to make a claim, and people have to hire you to defend against a claim. And we live in an age where things like this can be recorded, and surveyors have expensive equipment that can pinpoint a spot within 1/4 inch. We don't need it. We can find property lines.

And don't get me wrong. I understand there are all kinds of property issues that arise that will only get resolved in court between lawyers. I just don't see a real problem that this legal mechanism resolves, except to get lawyers paid, and in the process allow people to steal property that isn't theirs.

 

[T.Lex]

Let's live in a world without adverse possession for just the minute it takes for considering this.

Imagine all the pee-pole....

Why would you spend money improving property you're not sure is yours?

Because humans needs shelter. A means of survival is even better. For free is even great.

Someone moves in, fixes the place up and starts thinking of it as theirs.

And if you're sure it's not your property, why would you spend money improving someone else's property?

Because that's what people do. I'm not a psychologist. I can't explain why. I can just tell you that they do.

And if you wrongly believe it is your property, why should the land owner lose his property because you didn't bother to check the records to make sure it's yours before spending your money to improve upon it?

There's a concept called "bona fide purchaser in good faith." Sometimes, the records are just wrong. We'll probably see more of this as the foreclosure glut moves on. Properties mistakenly foreclosed. Properties mistakenly NOT foreclosed, then sold, then foreclosed. (I have actually seen that one.)

Check out some of the MERS mistakes. MERS is a private clearinghouse of mortgages so the banks wouldn't have to pay to record them each time they changed hands.

Not. Foolproof.

And we live in an age where things like this can be recorded, and surveyors have expensive equipment that can pinpoint a spot within 1/4 inch.

But we don't. Well, technological precision has increased, but the new tech suffers the same problems as the old metes and bounds. Depends on starting points, human fallibility, etc.

I just don't see a real problem that this legal mechanism resolves, except to get lawyers paid, and in the process allow people to steal property that isn't theirs.

It isn't a problem until it is a problem. People get funny about their land - both when it is their land and when they think it is their land. These aren't problems that are usually solved by handshakes and beer summits.

Attorneys don't have cases. Clients have cases. If the clients didn't want to go to court, the attorneys wouldn't either.

 

[jamil]

Imagine all the pee-pole....



Because humans needs shelter. A means of survival is even better. For free is even great.

Someone moves in, fixes the place up and starts thinking of it as theirs.



Because that's what people do. I'm not a psychologist. I can't explain why. I can just tell you that they do.


There's a concept called "bona fide purchaser in good faith." Sometimes, the records are just wrong. We'll probably see more of this as the foreclosure glut moves on. Properties mistakenly foreclosed. Properties mistakenly NOT foreclosed, then sold, then foreclosed. (I have actually seen that one.)

Check out some of the MERS mistakes. MERS is a private clearinghouse of mortgages so the banks wouldn't have to pay to record them each time they changed hands.

Not. Foolproof.



But we don't. Well, technological precision has increased, but the new tech suffers the same problems as the old metes and bounds. Depends on starting points, human fallibility, etc.


It isn't a problem until it is a problem. People get funny about their land - both when it is their land and when they think it is their land. These aren't problems that are usually solved by handshakes and beer summits.

Attorneys don't have cases. Clients have cases. If the clients didn't want to go to court, the attorneys wouldn't either.

Well, don't get me wrong, I'm not trying to rid the world of lawyers. As long as we have laws we'll need lawyers.

I understand that sometimes things go wrong, and there are mistakes. Sometimes the records are just wrong, but that's not a problem we need adverse possession to solve. Especially since the primary problem you guys say it solves is land use and not mistakes. When we find discrepancies between what's recorded and what we think is recorded it seems there are other legal means to resolve that.

When I bought the lot I built my house on, I paid a lawyer to do a title search. I paid for title insurance. I had a survey done. I was even there when they showed up to do the survey. They had $20K worth of gizmos they said communicate with more than a dozen GPS satellites, and was accurate to within 1/4 inch. I've done all I can to make sure I got what I paid for. If someone comes along and thinks part of my lot is theirs (it's part of a subdivision so I don't think I'm a strong candidate to have my land adversely possessed anyway) a trip down to the county records department, maybe another survey, should be all that's needed to resolve that.

 

[DoggyDaddy]

How would this apply to someone that wanted to buy undeveloped property for future use? DoggyMama and I have been starting to think about getting some land down in Tennessee where we will eventually build a small house to retire to. There would be no immediate "use" of the land, so would it be vulnerable to this adverse possession?

 

[Kirk Freeman]

If adverse possession goes away, you guys lose on both ends.

No, the problem simply is converted into a problem of another name--trespass, ordinance violation, nuisance, inter alia.

 

[Kirk Freeman]

Constitutional stuff is fun for me and seldom (but not never) what I get paid to do. I'll through in my 2 cents on those issues.

Hey, now, for some of us the Constitution is what we do all day.

 

[Kirk Freeman]

How would this apply to someone that wanted to buy undeveloped property for future use? DoggyMama and I have been starting to think about getting some land down in Tennessee where we will eventually build a small house to retire to. There would be no immediate "use" of the land, so would it be vulnerable to this adverse possession?

Yes. Find out what it takes to combat adverse possession in Tennessee.

Post the land, show the flag around the property, pee on a tree or three, call the Sheriff on trespassers, etc.

 

[DoggyDaddy]

Yes. Find out what it takes to combat adverse possession in Tennessee.

Post the land, show the flag around the property, pee on a tree or three, call the Sheriff on trespassers, etc.

I can't just shoot the trespassers? I mean peeing on trees is fun and all but it's not the same as shooting trespassers.

 

[Kirk Freeman]

I can't just shoot the trespassers? I mean peeing on trees is fun and all but it's not the same as shooting trespassers.

*Sighs, rubs forehead with both hands*

 

[jamil]

How would this apply to someone that wanted to buy undeveloped property for future use? DoggyMama and I have been starting to think about getting some land down in Tennessee where we will eventually build a small house to retire to. There would be no immediate "use" of the land, so would it be vulnerable to this adverse possession?

Yes. Find out what it takes to combat adverse possession in Tennessee.

Post the land, show the flag around the property, pee on a tree or three, call the Sheriff on trespassers, etc.

Would he have to video himself peeing on a tree? 'Cause, if a man pees on a tree in the forest, and no one is there to see him pee, did he really pee on a tree in his forest?

I can't just shoot the trespassers? I mean peeing on trees is fun and all but it's not the same as shooting trespassers.

*Sighs, rubs forehead with both hands*

Some people understand your triggers very well.

 

[DoggyDaddy]

*Sighs, rubs forehead with both hands*