“Thou shalt not covet thy neighbor’s property” ispart of the Ten Commandments. But real estate law in every state says it is allright to steal your neighbor’s land without going to jail if you comply withstate 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.
Purchase Bob Bruss reports online.
The selfish reason is the state wants to collect as muchproperty tax as possible by keeping property in use.
But when a property is vacant and unused, the rightful owneroften fails to pay the property taxes. So state laws encourage stealingproperty and returning it to the property tax rolls.
‘SQUATTER’S RIGHTS’ ARE THE LEGAL BASIS FOR STEALING REALESTATE. Every state except Louisiana adopted variations of Englishcommon law in the 1800s and early 1900s. Louisiana chose the French NapoleonicCode, 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 realestate without permission and pay the property taxes for the number of yearsrequired by state law, I can eventually claim full fee simple absoluteownership of your property.
For example, the house adjacent to mine has been vacantabout three years. If I moved in and continuously occupied it, paying theproperty taxes when they come due, I could eventually acquire title to thisproperty. However, I’m not going to do that.
The reason is I observe the legal owner occasionallyvisits his empty house. He has even applied for a building permit to remodelit. If he found me living in his house, he would summarily throw me out as atrespasser 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. Eachstate has laws allowing two methods of stealing real estate without going tojail.
1. ACQUIRE LEGAL TITLE AND FULL USE. The mostdifficult method to steal your neighbor’s property is “adversepossession.” That means you must occupy the entire property without theowner’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 yearswithout the owner’s permission, pay the property taxes, and you can acquirefull ownership by then suing the legal owner in a quiet-title lawsuit. It’sthat easy.
However, Texas and several other states have much tougheradverse possession laws, requiring “open, notorious, hostile, exclusiveand continuous occupancy” for 30 years. Needless to say, not many Texansclaim title by adverse possession.
Other states have adverse possession limits between thesefive- and 30-year extremes.
The nation’s leading adverse possession case is Stevensv. 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 thathe adversely possessed for 15 years the San Francisco apartment building at1899 Oak St. in the famous Haight-Ashbury District. Stevens showed open,notorious, hostile and continuous possession. However, he was unable to provepayment of the property taxes. Therefore, he lost his attempt to gain title tothe building by adverse possession.
2. STEAL PART OF A PROPERTY BY HOSTILE USE. Perhapsyou don’t want to acquire a neighbor’s entire property without paying, but youjust want to use part of that property, perhaps to plant flowers or vegetables.
All you need is a prescriptive easement. The legalrequirements in each state are usually the same as for acquiring title byadverse possession, but you don’t have to pay any property taxes.
In other words, you must occupy a portion of your neighbor’sland by open, notorious, hostile and continuous possession for the number ofyears required by state law. Interestingly, use need not be exclusive so you couldshare the prescriptive easement area with the property owner or another user.
However, permissive use defeats ever acquiring aprescriptive easement. If your neighbor says “Sure, go ahead and use partof my property,” you will never obtain a permanent prescriptive easement.
Prescriptive easement examples include driveways, paths orany portion of a property that is continuously used without permission.
To perfect a permanent prescriptive easement, after therequired number of years’ use, the claimant should bring a quiet-title lawsuitagainst the titleholder.
PREVENT LEGAL THEFT OF ALL OR PART OF YOUR PROPERTY. Periodicinspection of your property is the best way to prevent someone from acquiringtitle by adverse possession or partial use of a prescriptive easement for therequired 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 continuoushostile use without permission.
To illustrate, years ago when I was a summer student atStanford Law School, one Sunday morning I got in my car with a few of my lawschool pals to drive into nearby Palo Alto for breakfast (we couldn’t afford”brunch”). But the main drive was blocked with a barricade. Thepolice officer directed us to a detour.
As a curious law student, I asked what was going on. Heexplained every summer Stanford blocks its private roads for a few hours on aSunday to prevent anyone from acquiring a permanent prescriptive easement.
THE EASIEST WAY TO DEFEAT HOSTILE USE. If youare concerned someone might be occupying all or part of your property withoutyour permission, there is a very easy way to avoid losing all or part of yourproperty.
Just grant permission. Depending on state law, you can posta sign, record a notice or personally notify the hostile user that “permissionto pass over my property is revocable.” Consult a local real estateattorney for exact details.
WHEN PROPERTY OWNERSHIP OR USE IS MOST LIKELY TO BE LOST. Millionsof individuals own real estate they rarely visit. Or, owners die and theirheirs and friends don’t know about a distant property they own.
For example, a few weeks ago I was talking with a Floridafriend who bought Arkansas real estate last year on eBay. He was extollingabout 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 Igo wrong?”
That is a property just begging for an adjacent owner to adverselypossess or at least acquire a prescriptive easement.
Inspection is the best way to prevent loss of title or useof 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 youown.
SUMMARY: The common law of adverse possession andprescriptive easements has valid purposes to promote property use and propertytax collection. However, realty owners can prevent theft of all or part oftheir property by periodically checking to be certain nobody is occupying allor part of their real estate without permission. For more details, pleaseconsult a local real estate attorney.
(For more information on Bob Bruss publications, visit his
Real Estate Center).
Copyright 2006 Inman News