Adverse possessin in Wisc.

But considering the requirements for adverse possession could it really be called stealing? Ok yes your taking what isn't yours, but you are not being secretive about it. Interesting though to see that perspective of punishment.

But until the time passes and fee ripens you are trespassing...

No, the idea is that a good adverse possession statute should bar the stealing of land and treat the issue as the good Wisconsin quote indicates. That's why most States require some evidence that the possessor had some reason to believe they own it, other than that they could own it if they could satisfy the statute.

Adverse possessin in Wisc.>Duane

You make the statement that most states require that you think you own the claimed property, as if adverse possession can be accomplished by mistake.

It is my impression that "intent" is part of and adverse claim, that you knowingly are using another's property against the better interests of the owner.

I recall that TN had intent as a factor, whereas MA does not.

I think that most require an intent to possess what isn't yours, with knowledge, aforesaid......

Adverse possessin in Wisc.>Duane

Don,

The form of the statute does impact the issue of AP by "mistake". The majority of jurisdictions require a "good faith" claim of right (not always worded exactly that way). Generally AP by mistake is allowed in this case. A few states require what amounts to a "bad faith" claim of right or the intent to steal if you want to look at it that way. In these states AP by mistake is generally not recognized. Makes sense really.

But to be clear, the "claim of right" is not color of title. The claim of right is where most of the litigation is centered and sometimes that pesky word "intent" creeps into the discussion to muddy the waters. Understandable, in that the time requirement and type of possession are much easier to show with evidence and usually not too hard to prove one way or the other.

Adverse possessin in Wisc.>Duane

Clark On Surveying and Boundaries

"Unless the adverse claimant is so in possession of the land that he may at any time be sued as trespasser the statue will not run in his favor;.."

and

"Most of the decisions indicate the necessity that the possession be "hostile" to the true owner. But there is a diversity of opinion as to what is required for "hostility." Some merely require that there be an intent to claim title, others insist that the intention be deliberate and not under a mere mistaken belief of title."

Just saying..... claim of right does not constitute adverse possession...

In Texas, adverse procession needs to be open and notorious to ripen. In other words; claimant needs no other title than better use doctrine. Specifically, adverse possession was seen as good public policy for Texans to re-occupy the lands and make better use of it, than the Yankee Carpet Baggers that acquired the land through Sherriff’s Auction after the War Between the States.

God Bless Texas.

Adverse possessin in Wisc.>Duane

Yes, most of the legal scholars and commentators do not like the actual decisions of the courts nor the way adverse possession has evolved.

Some courts allow the trier of fact to infer claim of right if hostile possession is proven, some don't.

There is no general statement of law we can throw out that can't be shown contrary in one court or the other. And the secondary sources such as Clarks have an awful lot of opinion on how things should be. Many suggest that the subjective state of mind should have nothing to do with it at all and the court should only look at whether a cause of action was developed and ignored by the record owner.

But I'll stand by my analysis that in most jurisdictions if the possessor intentionally builds on land that they know is not theirs, and that is proved in court, then AP is going to fail for them. In my opinion that is the way it should be as well. In my opinion the legal community would like it to be just the opposite, and that is mostly the way they write it up.

In the end it should be, and generally is, about the court deciding who is the wronged party. They will arrive there with many differing nuances and analysis of the jumble of terms and ideas relating to AP. There couldn't be a more unpredictable area of litigation, which is what makes it such an interesting topic.

Adverse possessin in Wisc.>Duane

"But I'll stand by my analysis that in most jurisdictions if the possessor intentionally builds on land that they know is not theirs, and that is proved in court, then AP is going to fail for them."

Not in this state, and not in TN..... This is so contrary to the intent of adverse possession that I don't even know what to say.... almost speechless!

If your statement means, even after the statutory time has passed they will fail, you're dead wrong.

If you mean that before the fee ripens the possessor is sued to remove, then you're probably right.....unless there is some sort of color of title beyond simple adverse possession...

Adverse possessin in Wisc.>Duane

I am in full agreement with Foggy on this.

There is a lot of good comments above but the premise underlying our 'legal disconnect' lies in a problem recognized in the 1880's by Justice Cooley.

In his 4th edition of 'Cooley's Blackstone', the introduction is titled 'Some suggestions for the study of the law' and the following sentence from that treatise sheds some light on the confusion:
"All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant."

Proof of ownership here in the US rests on unchallenged occupation and control, not words on a piece of paper because the citizen, not the gov't, has the responsibility to protect themselves and their property. The gov't is an employee or servant who is ready to help if needed.

In fact, the premise that our gov't has any control over the disposition of land, (not land use), is one of the fundamental flaws in our legal system.

American common law should be based on the rules of agency, not english common law. Looking to our courts alone, witout a clear understanding of the fundamental rights of the citizen, is expecting the blind to provide meaninful guidance to the halt and the lame.

Study the fundamentals listed in Black's definition of "Alienation" to get an understanding of the duty of the surveyor who, alone, is recognized as the expert who can, by recovering and analyzing physical evidence, determine the location of the legal boundary line of parcels created by acts of the parties as opposed to those parcels created by law.

Richard Schaut

What about the case of Jones grants to Smith his property.

No one knew Jones was married and his wife had a community property interest in the property yet she did not sign the Deed or Q/C her share to Jones.

10 years go by. Jones has died and his wife shows up on Smith's doorstep demanding half the property. Smith has paid the taxes the entire time.

Wouldn't AP clear this up?

Dave - I think that's exactly the kind of case AP is meant to clear up. I defer to the Wisc. experts on what goes on there and other places I'm not familiar with but the only successful case of AP I've ever seen in CA involved an entire piece of property that the record title owners forgot they owned and failed to pay the taxes on it. My client picked up the taxes, dragged enough crap onto the property to make a case that he was occupying it and voila, he eventually was legally ruled to be the owner. That was an entire piece of property, though; not just a part of an adjoiner that he decided to occupy. I'm not saying that can't happen anywhere, just in CA I've never heard of it, have you?

In that context, AP is a perfectly reasonable doctrine that prevents property from lying fallow just because somebody with record title to it doesn't care enough to act like the owner.

Adverse possessin in Wisc.>Duane

> But I'll stand by my analysis that in most jurisdictions if the possessor intentionally builds on land that they know is not theirs, and that is proved in court, then AP is going to fail for them.

That's exactly the way the Maryland Courts see it:

The "hostility" essential to the acquisition of title by adverse possession does not necessarily import enmity or ill will, but rather that the claimant's possession be unaccompanied by any recognition, express or inferable from the circumstances, of the real owners right to the land.

Hungerford v Hungerford 233 Md 338, 199A.2d 209 (1964)
Cited most recently in a case a few months back

It's also the way "hostility" is defined in "Evidence and Procedure....":

Hostile possession must, in most states, be against the interests of the fee owner without admission, by the adverse claimant, that the land is not his.

There is a pretty good section on the two interpretations of "hostility" and the ways courts in some states are evolving the definition of "hostility" in the 7th edition of Clark's (one of the times that a modern version is better than the 2nd edition)

Adverse possessin in Wisc.>Duane

What I'm saying is there is not one intent of AP law. There are several public policy reasons underlying the need for it. The law is (and has been) changing in time with shifting societal concerns.

The intent you refer to has usually been expressed as encouraging the use of land over its lying vacant. This is good public policy on the frontier of a developing nation (arguably at least). But in a modern developed country with good sytems of land records and a plethora of cheap and available surveyors, this policy seems poor at best. Courts and legislatures have realized this fact. When the law encourages unstable land titles in otherwise stable areas, then it will be modified.

But AP is still needed. One of the other public policy concerns is to protect those who do improve land in good faith belief that they own it. This prevents a record owner who could have been more diligent from recieving a windfall generated by the improvements.

ONe of the older cases I read had an opinion that stated in part "it is not customary nor practical for the purchaser to acquire a survey". This kind of thinking is so outdated it's absurd. We don't need and shouldn't tolerate AP statutes that continue to buy into this 18th century policy. If the Mass. statutes still do, why not lobby for change via the Mass. surveyors association?

Adverse possessin in Wisc.>Duane

I happen to think that the mass. 20 year AP rules are good ones. I wouldn't lobby, or encourage lobbying to change the law.

We have tons of land out here on Cape Cod with difficult title issues dating back hundreds of years to hundreds of heirs in some cases, and this land will just lay vacant because either the heirs aren't organized enough to liquidate or improve the property.

You mention the wild west and the validity of AP towards those lands, i believe it's just as valid, and with a 20 year requirement I believe that's adequate notice to the true owner.

I can't remember how many situations I've been involved with that wake up at the 17-19 year range... I have tow of those right now, and one that was over 30 years of occupation...

It's issues like this that really demonstrate the regional differences in our Profession!! Kind of fun, to me anyway 😉

Adverse possessin in Wisc.>Duane

There certainly are regional differences, but I was referring to Mass. as the frontier:) The wild east if you will, back in the day.

All I can say is that if there are difficult title issues, then you most likely are dealing with a good faith claim. I'm all for AP in those cases.

But is one can find the unequivocal record owner of a vacant parcel, shouldn't they be required to contact them and buy it? What policy is served by merely allowing people to ignore the clear record title holder and squat on the property hoping to rely on the AP statute to protect them down the road? If the government can preserve millions of acres of land in its natural state, protected against AP, why can't private landowners do the same with smaller tracts? Why is there more burden on the private owner than the government to use, improve, inspect, patrol, at the risk of otherwise losing their property?

Adverse possessin in Wisc.>Duane

Yes, that really is the crux of the matter. It's approached and expressed in so many differing ways in differing courts and statutes that it's hard to see what's really going on. But the trend is unmistakable, it is getting much more difficult to win an AP claim.

DUANE

But is(if) one can find the unequivocal record owner of a vacant parcel, shouldn't they be required to contact them and buy it? What policy is served by merely allowing people to ignore the clear record title holder and squat on the property hoping to rely on the AP statute to protect them down the road? If the government can preserve millions of acres of land in its natural state, protected against AP, why can't private landowners do the same with smaller tracts? Why is there more burden on the private owner than the government to use, improve, inspect, patrol, at the risk of otherwise losing their property?

Why should anyone have to look outside the subject property in order to 'find' the 'owner'? Since when did the owner not have the affirmative obligation to protect their property?

In the US, the 'burden' DOES rest on the owner, not the gov't.

Remember what happens to land in a 'sheriff's sale'? The absentee owner who fails to pay taxes finds that the land has been sold to someone who will occupy and actively control the land for the amount of the delinquint taxes. Now the paper title holder has a limited time to redeem the land from the one who holds the tax deed but, once that time limit has passed, the paper title is extinguished.

I think you need a much more thorough grounding in US land law before you try to further compromise the rights and responsibility of the land US owner.

Try a thorough analysis of the reasoning behind the definition of 'Alienation' before you go off the deep end again.

Richard Schaut