Adverse Possession and Its Impact Term Paper

  • Length: 11 pages
  • Subject: Business - Law
  • Type: Term Paper
  • Paper: #38141104

Excerpt from Term Paper :

Surprisingly, there is very little systematic discussion of this fundamental issue in the legal literature (Adverse Possession (http://faculty.palomar.edu/eschultze/Class_Files/LAWCH21.htm)."

The premise of adverse possession is that the land in question is being neglected or ignored by the land owner. Because of this assumed neglect or being ignored, when the squatter uses the land is no longer being neglected. If the land owner turns a blind eye to the use of the land the owner is consenting to give up that land by the very lack of objection.

This theory, which has its roots in Mill, starts with the premise that everybody owns the land in common: there is no such thing as private property because nobody is born with some sort of natural right to any particular piece of property. In other words, everybody has a right to every piece of property in the world. Suppose there's a piece of property you want to claim for yourself: employing the traditional (if over-simplified) picture of private property, you want to have the exclusive rights to exclude others, to use the land as you see fit, and to transfer it to whomever you wish (Adverse Possession (http://faculty.palomar.edu/eschultze/Class_Files/LAWCH21.htm)

The big puzzle for private property, then, is not anything about internalizing costs or promoting bargaining: instead, the question is why other people should be excluded from the piece of property that you claim for yourself. To put it another way, the Demsetz justification for private property merely says that it's best for property to be divided up among private owners; however, it says nothing about why you should have any particular piece of property (Adverse Possession (http://faculty.palomar.edu/eschultze/Class_Files/LAWCH21.htm)."

The biggest argument against allowing the government to get title of land through the use of adverse possession is the fact that adverse possession amounts to stealing land. While the land owner may not actively work the land, the fact remains it does belong to that land owner (Adverse possession in Oregon: the belief-in-ownership requirement.

Environmental Law; 6/22/1993; Olson, Per C.). Allowing someone to take over that land without paying for it, simply because it was used or the owner was kind enough to let it be used, is not a reason to allow the stealing of the land through the use of adverse possession (Adverse possession in Oregon: the belief-in-ownership requirement.

Environmental Law; 6/22/1993; Olson, Per C.).

Adverse possession law allows wrongful and unpermissive possession to become title ownership through the passage of time, acts of the claimant, and inaction of the landowner. A claimant gains title because she has justifiably relied on the true owner's failure to eject her while she made obvious and lasting investments. The wrongfulness of her conduct diminishes in light of the titleholder's complete failure to act. The wrongful occupant's possession must be open, notorious, hostile, continuous, exclusive, and, in Oregon, under a "claim of right" for ten years (Adverse possession in Oregon: the belief-in-ownership requirement. Environmental Law; 6/22/1993; Olson, Per C.)."

When it comes to the government using adverse possession to take over the land of a private owner, it is in essence allowing the government to commit theft of land. The government is not supposed to commit acts of crime or low morals against those that the government serves. An act of adverse possession is allowing the government to take something for nothing.

The strongest argument against the government being allowed to take land title through the use of adverse possession however, has to do with the constitution. The United States Constitution provides the fifth amendment that protects property from being seized. The United States government or any representative of that government should never be allowed to go against any clause or part of the constitution. (Roska, 2000)

Adverse possession can only be done if the land owner did not give permission for h the land to be used. If the owner gives permission that makes the person or entity using the land a tenant and that is not something that adverse possession can apply to. Adverse possession is only allowed if there is no permission given and the person or entity simply squats on the land illegally as a trespasser for a certain amount of time.

Adverse possession is in and of itself an act of illegal trespassing and aggression, and not something the government has the right to do.

One expert explains adverse possession as:.

As I've said before, adverse possession turns a trespasser into a true owner. The legal claim is based on the 20-year statute of limitation for filing suit to recover land. If the original owner doesn't sue within 20 years to kick somebody off his or her property, the intruder becomes the owner and can kick the old owner off.

The State Supreme Court says there are five essential ingredients to an adverse possession claim. Possession must be: "(1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner." If you can prove all five elements, you win.

Continuous" simply means 20 straight years, without any interruptions. The "hostile or adverse" part is a lot like the fifth element of incompatibility. It doesn't mean a personal clash, but one between your legal claim and the owner's. "Actual" means you are in physical possession or control-not just that you claim some place. "Open and notorious" is an obvious presence on the land, so that the true owner, and any other claimant, has notice of what you're up to."

Adverse possession must involve two elements. It must involve the open use of land so that the land owner knows one is there and it must involve a hostile act. The hostile act only needs to be the squatting on the land, which interferes with the rightful land owner's rights and does not mandate any acts of aggression.

The government is not supposed to interfere with the constitution for any reason whatsoever (Roska, 1999).

The Supreme Court has held that the federal government and each state has eminent domain, that is to say, the power to take private property. The Fifth Amendment provides that private property may only be taken for public use if just compensation is paid. The provision did not, originally, directly apply to the states (Fifth amendment (http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Tex)."

The above clause of the United States constitution provides the complete argument about why the government cannot be allowed to exercise adverse possession for the purpose of obtaining land from private owners.

The constitution sets the stage for all actions of the government. The government is charged with holding any action it takes against the United States constitution and being sure that it complies before that action can be declared valid. Adverse possession provides an avenue for someone to take over private land without paying for it. If compensation is given then it is not an act of adverse possession. When discussing whether or not the government is entitled to take land through the use of adverse possession one must refer to the constitution that states there MUST be compensation given any time eminent domain needs are handled.

The owner of the property that is taken by the government must be justly compensated. Speculative schemes that the owner claims the property was intended for use in need not be taken into account when determining the amount that must be paid. Normally, the fair market value of the property determines "just compensation." If the property is taken before the payment is made, interest (though the courts have refrained from using that term) accrues. The courts have not refrained from seizing land for commercial development on the behalf of said developers when the state stand to gain sizable compensation through taxation of such a business, though in 2005, the Supreme Court has agreed to hear the case Kelo v. New London, the first major case on eminent domain to reach the high court in years."

The government is locked into paying for any property that it takes, therefore cannot ever use adverse possession to take property because to do so would defy the constitutional fifth amendment.

Adverse Possession in Tennessee; Protecting your Interests (http://plsurvey.com/adverse.htm)

References

Adverse possession in Oregon: the belief-in-ownership requirement.

Environmental Law; 6/22/1993; Olson, Per C.

YOU CAN'T CLAIM LANDLORD'S PROPERTY by ADVERSE POSSESSION

St. Louis Post-Dispatch; 11/9/2000; John Roska; Land of Lincoln Legal Assistance Foundation

St. Louis Post-Dispatch

LONGTIME OCCUPIERS CAN CLAIM RIGHTS to LAND THAT'S in DISPUTE THROUGH 'ADVERSE POSSESSION'

St. Louis Post-Dispatch; 1/21/1999; John Roska; Land of Lincoln Legal Assistance Foundation

St. Louis Post-Dispatch

Adverse Possession

http://www.scwu.com/news/arc5-2003.shtml

C. Adverse Possession

http://faculty.palomar.edu/eschultze/Class_Files/LAWCH21.htm

CASES

http://www.abanet.org/rppt/publications/magazine/2004/mj/current-property.html

New Developments in Property Law

http://www.law.harvard.edu/faculty/jsinger/developments/stateadverseposs.php

Adverse Possession:Basics

http://www.lawyerviews.com/lawsite/basicinfo/ap.html

By Konstantine Kyros, Esq.

Adverse Possession in Tennessee; Protecting your Interests

http://plsurvey.com/adverse.htm

By Kirsten Anderberg (www.kirstenanderberg.com)

http://users.resist.ca/~kirstena/pageadversepossession.html

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