Adverse Possession and Its Impact

¶ … adverse possession and its impact when it comes to government action. The writer explores the legal ramifications of adverse possession and the fifth amendment and argues that the government does not have the right to take over property through the use of adverse possession rules.

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Eminent Domain is a law by which the government is allowed to take over property without the property owner's permission if taking over that property will benefit the good of the whole population. It is an often argued point and a bone of contention in many legal cases across the nation. The media picks up stories about grandmothers being put out of their homes, or historic sites being destroyed all in the name of eminent domain. One debate that has cropped up in legal groups is the question of adverse possession and the government right to land through the use of adverse possession. Adverse possession is the act of seizing land without buying it and has commonly been referred to as squatting, or squatters rights. While this is something that non-government individuals have dealt with for years, many people believe that the government needs to be held to a higher standard. The government should not be allowed to remove the rights of ownership from property without the owner's permission. If the property owner is kind enough to allow the government use of the property out of national pride, or some other reason the government should not have the legal right to then take that land.

What is Adverse Possession?

There have been several court cases and legal arguments recently when it comes to adverse possession by the government against a private land owner. A private land owner who finds that the government has taken over his or her land without just compensation can take the matter to court. Other incidences have been taken to court with mixed results in the past (New Developments in Property Law (http://www.law.harvard.edu/faculty/jsinger/developments/stateadverseposs.php).

Does the government have to compensate an owner if it acquires title to private property by adverse possession? One federal court held that it did, citing Loretto and explaining that, although private owners do not have to compensate when they acquire property by adverse possession, the "government is not like another individual." Pascoag Reservoir & Dam, LLC v. State of Rhode Island, 217 F.Supp.2d 206 (D.R.I. 2002), aff'd on other grounds, 337 F.3d 87 (1st Cir. 2003). The state would have had to pay compensation if it had taken the property directly by eminent domain and should not be able to avoid that obligation simply by occupying the property for a long time (New Developments in Property Law (http://www.law.harvard.edu/faculty/jsinger/developments/stateadverseposs.php).Most courts however have held that no compensation is due because the private property owner is always entitled to sue to eject the government if it is occupying her property and adverse possession occurs only when the statute of limitations runs out. Weidner v. State, 860 P.2d 1205 (Alaska 1993); Stickney v. City of Saco, 770 a.2d 592, 2001 ME 69 (Me. 2001). In that case, the claim for ejectment is time barred and arguably so is any regulatory taking claim. In addition, property has always been subject to loss through adverse possession so an exercise of that power by the state takes no property rights to which the owner was ever entitled. The owner could have brought a claim in ejectment and obtained damages for the trespass before the running of the statutory period and once that period runs out, there are no property rights left to protect from confiscation (New Developments in Property Law (http://www.law.harvard.edu/faculty/jsinger/developments/stateadverseposs.php)."

Adverse possession is the possession of land through nothing more than being on the land. There is no requirement for money to change hands, and in fact if that does happen then it is not adverse.

Before one can fully understand the impact of adverse possession by the government one needs to have a grasp about what adverse possession entails. Adverse possession is the act of taking the title to land or real property through the act of physical occupation. The occupation has to occur over a long period of time.

Different states have different requirements for adverse possession to take place. Massachusetts for instance has the following requirements (Adverse Possession:Basics http://www.lawyerviews.com/lawsite/basicinfo/ap.html

By Konstantine Kyros, Esq.):

In Massachusetts you must possess the property being claimed, continuously for 20 years (Mass. Gen. L. Chapter 260, sec.21) to meet the requirements for adverse possession you must also show that:

You were the exclusive possessor and actually entered the property.

Your possession must be open and notorious -- your possession must be seen. The possession must be appropriate to the type, size and use of the land. Enclosures, houses, cabins, payment of taxes all help establish your claim. The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.

Your possession must be adverse to the owners claim, in other words without the owners consent. If the owner has given permission for you to be on the property you can't claim the property adversely.

Your possession must be continuous (for 20 years). If your entry was only occasional you may be deemed a trespasser and not be able to claim adverse possession. However, certain seasonal or intermittent uses satisfy the continuous element if the average owner of a particular piece of property would use it in that manner (e.g. A summer home) (Adverse Possession:Basics http://www.lawyerviews.com/lawsite/basicinfo/ap.html

By Konstantine Kyros, Esq.).

Continuity can also be established by adding together or "tacking" successive adverse possessors. For example if a possesses the land for 15 years and then gives it to B. who possesses it for 5 years, B may then claim title by adverse possession by tacking the two claims (Adverse Possession:Basics http://www.lawyerviews.com/lawsite/basicinfo/ap.html

By Konstantine Kyros, Esq.)."

Adverse possession has to do with the peaceful and cohesive living in society. The premise is if someone allowed the occupation of land for a set period of time without objection then they obviously had no use for that land and for the good of the people in the area, the person or persons who have occupied it should have the rights to it as they have proven their need and appreciation of it by virtue of the use.

The other line of thought argues that adverse possession really functions to protect property rights. The doctrine protects ownership by barring stale claims and errors in the title records. The idea is that as time passes it becomes more difficult and ultimately not worthwhile to seek out every remote claim to the disputed property. The doctrine is sort of designed to flush the system of errors. As seminal law review article states the idea is not to "reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing." Henry Ballantine, "Title by Adverse Possession," 32 Harv. L. Rev. 135 (1918). Although the doctrine is not designed to protect wrong doers or "diligent trespassers" it does so because it is necessary to protect valid titles from various errors and the passage of time (Adverse Possession:Basics http://www.lawyerviews.com/lawsite/basicinfo/ap.html

By Konstantine Kyros, Esq.)."

The case of adverse possession can be clearly understood when it comes to private parties, but when it comes to the question of the government taking over land through the use of adverse possession there are often objections because it is the government. The government has often been expected to hold itself to a higher standard than every day society. Elected officials, cops, fireman and other members of the government are often expected to live above normal standards and maintain that standard as long as they are part of the government. Government attempts to take over land through the use of adverse possession is often met with objection because it smacks of big brother tactics or other unsavory methods of control.

Adverse possession is a means of obtaining title to land without delivery of a deed. The elements of adverse possession are listed in the text, and the public-policy reasons for the doctrine are briefly stated: adverse possession statutes aid in the resolution of boundary disputes and in quieting title when it is in dispute, adverse possession statutes encourage the use of property by assuring that it remains in the stream of commerce, by depriving owners who sit on their rights too long of their property, and by rewarding possessors who put land to productive use (Adverse Possession (http://faculty.palomar.edu/eschultze/Class_Files/LAWCH21.htm)."

Adverse Possession (http://www.scwu.com/news/arc5-2003.shtml)

Adverse possession as an integral part of private property: In "Property Rules, Liability Rules, and Adverse Possession," Thomas Merrill writes, "Given the strong case for maintaining a system of property rights, a threshold question is why we are ever justified in shifting the entitlement from the [true owner] to the [adverse possessor] after the passage of a number of years. 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.