Sunday, September 22, 2013


You may be surprised at how often I get this question.  Usually there is a story: years ago someone put up a fence to keep the cows out of the orchard or the foxes away from the chickens or the kids in the yard.  Maybe no one knew where the property line was back then or maybe they did, the “who knew what who said what who agreed to what” is usually in dispute, but what is clear is that one party is using property on the wrong side of the surveyed official property line, and Mr. Robinson is suing his neighbor.

Frequent readers of Ask Roxy know that this is the paragraph where I digress into historical context and the history of this area of law is interesting.  First you have to know that the basis for real estate law (and most laws really) in the United States came over on the boats with the pilgrims from England.  In the English common law system the highest, best form of ownership of “real property” (“real” meaning land as opposed to stuff) is called “fee simple.”  Thats what you have if your name is on the deed as opposed to some lease agreement.  Of course there are exceptions such as life estates, but they are more rare and they are clearly identified on the deed.

By the way, the word “Fee” is derived from “fief” so I give you permission to tell your relatives that you bought your own fiefdom.  We call it fee simple because in feudal times a transfer of land came along with all sorts of ongoing duties (bushels of wheat that must be paid every year, promises to send the boys every time there is a war, if you’ve been watching Game of Thrones you get the idea of these “promises”).  Those were fee complicated (just kidding, but you get the point).  These days you pay the money, you get the title, you never have to deal with the old owners again, simple as that.

Back in early feudal times the way to convey a fief was to actually pick up a dirt clod and pass that clod to the other person.  Personally, I think we should bring this ceremony back because going to the land and having the owner actually pass you a dirt clod would be just so much cooler than your real estate agent handing you the keys in some conference room.  But, either way, the effect is almost magical because once you are a Land Owner you have all sorts of special rights.  The most important of these rights is the right to exclude other people from your land.  

This right to exclude other people is so important that even the government has to respect it (to some extent, hello Patriot Act).  But back under the English common law there was a catch: if you abandoned your property and someone else made use of it then the court would only look back a certain number of years in order to determine who actually owned the property.  This was partly to cut down on litigation and hassle but it also promoted the care taking of land.  At first it went something like this:  If you have had this property since the reign of King so and so it is your property even if someone else can prove a prior claim.  Later, they dropped the king stuff and just picked a number of years.  And that is basically what came over the pond to us: “adverse possession” law.

In most states on the East Coast of the United States the term of years for adverse possession is long, 20 or 30 years, but in California it is only 5 years.  Why so short?  Well, think about it, in the early days of California there was a ton of wilderness and lots of Native Americans who were grumpy about their land being forcefully taken from them.  The white governments wanted to encourage expansion and decided to reward white settlers who actually stuck it out and actively defended “their” land from Native people or anyone else who might claim it.  If you abandoned your land in the Wild West you could lose it pretty quickly to a more determined white settler.  

The rules for how to prove up an adverse possession claim vary from state to state, but in most places, one of the main requirements is that you took the property without the permission of the owner.  The idea here is that if the owner allowed you to stay there you were probably a tenant or guest of some sort and you can’t bite the hand that feeds you.  So, a big part of these cases revolve around whether there was permission or not.  It goes against common sense to give permission to someone who is using your land but, in many cases, if you’re not ready to actually defend your land with a trespass suit, giving permission in an official manner is a decent stop gap measure.  

It is important to note that the rules around taking an easement to use your neighbor’s property (like diverting water from their creek or crossing their lawn to get to the beach) has similar rules but is an entirely separate matter from adverse possession.  Adverse possession is a grab for a fee simple title.  Now, don’t you love how Ask Roxy readers can toss around legalize like “fee simple title” and have a better idea of what they are talking about than most attorneys?

So how can you steal a chunk of your neighbors land?  First, you need to see an attorney in your state.  The laws around adverse possession vary greatly from state to state and there are important rules that you need to be aware of.  For example, here in California the timber industry owns a ton of land and didn’t feel like inspecting every acre for squatters so they pushed through legislation stating that you have pay taxes on the land you are trying to adversely possess.  That way no one needs to get up on their horse and actually patrol the borders of their land, instead the land owner simply inspects the tax roles from the comfort of a cushy office.  My best guess is that the tax rule basically kills most adverse possession land grabs in California, but I don’t have any statistics.  Maybe try your luck in another Western state.

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