Adverse possession and prescriptive easements:
How to steal your neighbor's
property and avoid jail
reprinted courtesy Bob Bruss 6/13/07
First step: Get into a squatting position
Editor's note: Robert Bruss is temporarily away. The following column from Bruss' "Best of" collection first appeared Sunday, June 23, 2006.
"Thou
shalt not covet thy neighbor's property" is part of the Ten Commandments.
But real estate law in every state says it is all right to steal your
neighbor's land without going to jail if you comply with state law.
That news may be shocking. However, it's true. In fact, statutes in every state
encourage the theft of your neighbor's unused property.
The selfish reason is the state wants to collect as much property tax as
possible by keeping property in use.
But when a property is vacant and unused, the rightful owner often fails to pay
the property taxes. So state laws encourage stealing property and returning it
to the property tax rolls.
'SQUATTER'S RIGHTS' ARE THE LEGAL BASIS FOR
STEALING REAL ESTATE. Every state except Louisiana adopted variations of
English common law in the 1800s and early 1900s. Louisiana chose the French Napoleonic Code, which
is often very "foreign" to non-residents.
For 49 states, English common law includes the tradition of "squatter's
rights." Simplified, that means if I occupy your real estate without
permission and pay the property taxes for the number of years required by state
law, I can eventually claim full fee simple absolute ownership of your
property.
For example, the house adjacent to mine has been vacant about three years. If I
moved in and continuously occupied it, paying the property taxes when they come
due, I could eventually acquire title to this property. However, I'm not going
to do that.
The reason is I observe the legal owner occasionally visits his empty house. He
has even applied for a building permit to remodel it. If he found me living in
his house, he would summarily throw me out as a trespasser so I have no hope of
ever acquiring title to that property by "squatter's rights."
TWO LEGAL METHODS TO STEAL YOUR
NEIGHBOR'S PROPERTY. Each state has laws allowing two methods
of stealing real estate without going to jail.
1. ACQUIRE LEGAL TITLE AND FULL USE. The most difficult
method to steal your neighbor's property is "adverse possession."
That means you must occupy the entire property without the owner's permission
for the required number of years.
California has the easiest "squatter's
rights" adverse possession law. Just occupy a California property for five years
without the owner's permission, pay the property taxes, and you can acquire
full ownership by then suing the legal owner in a quiet-title lawsuit. It's
that easy.
However, Texas and several other
states have much tougher adverse possession laws, requiring "open,
notorious, hostile, exclusive and continuous occupancy" for 30 years.
Needless to say, not many Texans claim title by adverse possession.
Other states have adverse possession limits between these five- and 30-year
extremes.
The nation's leading adverse possession case is Stevens v. Tobin (251 Cal.Rptr.
587), decided by the California Supreme Court. Thomas W. Stevens sued the legal
owner in a quiet-title lawsuit. He proved that he adversely possessed for 15
years the San
Francisco
apartment building at 1899 Oak St. in the famous Haight-Ashbury District. Stevens showed open,
notorious, hostile and continuous possession. However, he was unable to prove
payment of the property taxes. Therefore, he lost his attempt to gain title to
the building by adverse possession.
2. STEAL PART OF A PROPERTY BY HOSTILE
USE. Perhaps you don't want to acquire a neighbor's entire
property without paying, but you just want to use part of that property,
perhaps to plant flowers or vegetables.
All you need is a prescriptive easement. The legal requirements in each state
are usually the same as for acquiring title by adverse possession, but you
don't have to pay any property taxes.
In other words, you must occupy a portion of your neighbor's land by open,
notorious, hostile and continuous possession for the number of years required
by state law. Interestingly, use need not be exclusive so you could share the
prescriptive easement area with the property owner or another user.
However, permissive use defeats ever acquiring a prescriptive easement. If your
neighbor says "Sure, go ahead and use part of my property," you will
never obtain a permanent prescriptive easement.
Prescriptive easement examples include driveways, paths or any portion of a
property that is continuously used without permission.
To perfect a permanent prescriptive easement, after the required number of
years' use, the claimant should bring a quiet-title lawsuit against the
titleholder.
PREVENT LEGAL THEFT OF ALL OR PART OF YOUR
PROPERTY. Periodic inspection of your property is the best way to prevent
someone from acquiring title by adverse possession or partial use of a
prescriptive easement for the required number of years in the state where the
property is located.
If you discover someone using all or part of your property, erecting even a
temporary fence or evicting a trespasser blocks the continuous hostile use
without permission.
To illustrate, years ago when I was a summer student at Stanford Law School,
one Sunday morning I got in my car with a few of my law school pals to drive
into nearby Palo Alto for breakfast (we couldn't afford "brunch").
But the main drive was blocked with a barricade. The police officer directed us
to a detour.
As a curious law student, I asked what was going on. He explained every summer
Stanford blocks its private roads for a few hours on a Sunday to prevent anyone
from acquiring a permanent prescriptive easement.
THE EASIEST WAY TO DEFEAT HOSTILE USE.
If you are concerned someone might be occupying all or part of your property
without your permission, there is a very easy way to avoid losing all or part
of your property.
Just grant permission. Depending on state law, you can post a sign, record a
notice or personally notify the hostile user that "permission to pass over
my property is revocable." Consult a local real estate attorney for exact
details.
WHEN PROPERTY OWNERSHIP OR USE IS MOST
LIKELY TO BE LOST. Millions of individuals own real estate
they rarely visit. Or, owners die and their heirs and friends don't know about
a distant property they own.
For example, a few weeks ago I was talking with a Florida friend who bought Arkansas real estate last year
on eBay. He was extolling about all its benefits. Then I asked when he last
visited his land he said, "Never. I haven't seen it yet. But at a $3,000
purchase price, how could I go wrong?"
That is a property just begging for an adjacent owner to adversely possess or
at least acquire a prescriptive easement.
Inspection is the best way to prevent loss of title or use of a property to be
certain nobody is trying to take over your real estate. Also, be sure your
heirs, relatives and others know where and what property you own.
SUMMARY: The common
law of adverse possession and prescriptive easements has valid purposes to
promote property use and property tax collection. However, realty owners can
prevent theft of all or part of their property by periodically checking to be
certain nobody is occupying all or part of their real estate without
permission. For more details, please consult a local real estate attorney.
(For more information on
Bob Bruss publications, visit his
Real Estate Center).
reprinted courtesy Bob Bruss 6/13/07
brought to you by Wailea Makena Real Estate Inc.
www.wailea-makena-real-estate.com
Peter Gelsey R (PB)
Wailea Makena Real Estate, Inc.
direct (808) 357-4552
Toll free 800-482-5089
fax (808) 442-0946
email pgelsey@aol.com