February 23, 2012

Legalized Theft of Real Property: Rhode Island's Adverse Possession Law

Monique Chartier

Today's ProJo contained a description of the most alarming threat to the private ownership of real estate that I've seen since the Kelo vs New London ruling.

A [RI] Superior Court judge has ruled that some neighbors, not Our Redeemer Evangelical Luther-an Church, own a piece of land because they have had uncontested use of it for more than the 10 years required by a state law. ...

The plaintiffs filed suit under the adverse-possession statute in June 2008. In Rhode Island, adverse possession means that if someone can prove open, unchallenged use of land for at least 10 years, a judge can rule that they are the owners.

Of course, the law doesn't apply only to church property. So you can simply set up shop on a chunk of someone's land - say, the land of an elderly person who doesn't get around as much as he used to. And if he doesn't notice that you have done so, after ten years, you can simply file suit and take possession???

This is insanity. Why should such a right and power be given to a squatter?

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But, you can't do that with land owned by the State. Hmmm, why might that be?

Posted by: Mike Cappelli at February 23, 2012 2:39 PM

Property Law 101. Same theory as statutes of limitations - don't want a lot of cases with decades-old records and dead witnesses clogging up the system. Check out prescriptive easements sometime - the only thing worse than losing your property is having to pay for and maintain it while somebody else gets to use it!

Of course, on a practical note, if you don't notice an encroachment on your land for 10 years, then you probably didn't need or care about the land much anyway.

Posted by: Dan at February 23, 2012 2:49 PM

As Dan said, Property Law 101. Well settled law adopted from the English common law. All the reps from the church had to do was say, "you're on my land" once during its adverse use and there'd be no legal taking of the property. According to the article the nieghbors landscaped the property, had campfires, and built a shed on the land.
The more I type the more its seems apparent that you sould have done a bit more research before posting this piece. There's nothing surprising about it nor does there appear to be an overreach by the juduciary in this ruling.

Posted by: seirra1 at February 23, 2012 3:03 PM

Yeah, I live in a residential neighborhood and the people who own the property next to mine are "hands off" owners to say the least. I've never seen them. Their tenants turn over every year and there's usually a month or so that the house is vacant. I've been tempted to simply move my fence into their yard by about 10 feet and see if anyone notices. After the requisite time, declare it mine.

Who said fences make good neighbors?

Posted by: Patrick at February 23, 2012 3:31 PM

"Adverse Possession" is as old as time, but rarely seen in well surveyed urban real estate. Regardless of who is making use of it,the first question is usually "who is paying the taxes on it". Kind of hard to prove you "had a right to it" if someone else is paying the taxes on it. Tends to arise where there is uncertainty, such as my deed which talks about "beginning at a large oak tree thence running, northeasterly, 17 rods, more or less, to a blackened stump" (I think a "rod" is about 17 feet, surveyors actually carried an iron rod). Ran into this once with the rear stoop of an old mill building in Somerville, MA. It is not well settled, we ended up agreeing to purchase an easement for continued use.

I think there is more to the story than the newspaper revealed. They may not have understood the crucial points. Then again, the judge may not have understood the crucial points.

Posted by: Warrington Faust at February 23, 2012 4:03 PM

"Then again, the judge may not have understood the crucial points"

Doubtful, a first year law student would've gotten this one right. The facts of the case read like a textbook law school exam question.

Posted by: seirra1 at February 23, 2012 4:11 PM

"Why should such a right and power be given to a squatter?"

Just wait, many of the Western States provide for "squatter's rights". This devolves from the days when there was no central recording of deeds, nor good surveys. Boundaries were frequently creeks and rivers 9 (so that water could be taken from both sides),these move. Whole towns along the Mississippi have been abandoned, the river moved.

Want some fun, Google "squatters rights" & Britain. Urban squatting is now recoginized there. We may be headed that way. Memphis is now bulldozing abandoned buildings to prevent squatters and gang infestation.

Posted by: Warrington Faust at February 23, 2012 4:11 PM

Adverse possession is a part of common law, but it's not really based on the modern justifications that have been retro-fitted to it. It dates back to feudal times, where all of the land was owned by the king, who granted the rights to its use to others through the feudal hierarchy. Common-law rules eventually evolved where the right to use land (that the king still owned, in the end) could be transferred to a new title-holder, if the original title-holder was absent for extended periods of time; maybe the [fill in the proper feudal title here] wasn't interested in the whole estate, maybe someone in the aristocratic line had died suddenly and who held title to what had gotten lost, etc.

So your anti-absolutist and pro-private property instincts are solid, Monique, even if the law tilts in the other direction.

Posted by: Andrew at February 23, 2012 4:23 PM

Posted by seirra1
"Then again, the judge may not have understood the crucial points"

Doubtful, a first year law student would've gotten this one right. The facts of the case read like a textbook law school exam question."

Unfortunately, the facts are not well stated here. As to the judge, I have seen an RI judge request loans from lawyers during the course of litigation. In Kent County one all but put a "for sale" sign on judgments in DUI cases. Can't recall names, it would all be in the Projo archives. Then, of course, we had Justice Bevilacqua harboring felons in his basement. Was it his basement? RI "justice" has a flavor to it.

May have been like my problem in Somerville MA. The cost of litigation might have exceeded the value of the property.

Posted by: Warrington Faust at February 23, 2012 4:24 PM

"Doubtful, a first year law student would've gotten this one right. The facts of the case read like a textbook law school exam question."

Sounds like a comment from a second year law student.

Monique is rightfully surprised by the law of adverse possession - it doesn't make sense to property rights advocates that you can legally steal someone else's land - the adverse possessor who knows the property does not belong to him and sets about adversely possessing it is nothing more than a thief who uses the law to steal the land.

What does differ between states' adverse possession law is the time period over which the adverse possession must take place. Ten years is not the shortest period of time, but as a property rights advocate, I'd prefer it be twenty years.

Warrington reminds me of our colorful judges - the family court judge removed for taking loans from lawyers appearing regularly before him, including one "lender" later elevated to and still sitting as Family Court Magistrate. And of course the famous pic of Justice Bevilacqua exiting the motel (while pulling up his zipper?) appearing on the front page of the ProJo. Those were the days...

Posted by: riborn at February 23, 2012 8:20 PM

I think it makes perfect sense, not to enable 'squatters', but to keep the system from getting bogged-down in strange ways.

Anyone who owns property ought to be checking up on it at least every few years. I can imagine situations where someone dies, the arbitration/executorship is mishandled, and property just sits unused for decades.

Posted by: mangeek at February 23, 2012 9:10 PM

"the adverse possessor who knows the property does not belong to him and sets about adversely possessing it is nothing more than a thief who uses the law to steal the land."

riborn, you are as guilty as Monique. My point was that a little research would have clued her in to the well settled law of adverse possession. Just as a little research would have clued you in to the plaintiff's belief that they owned the land in question. Although in this day and age adverse possession may sound a bit archaic it is sometimes completely appropriate, as in this case.
Google "joseph harrison lutheran church" the first heading is the pdf version of the RI Superior Court's 10 page decision of the case. Interesting reading. Adverse possession isn't some Sunday blue law that needs to be repealed, it still has real world modern day applicability.
By the way riborn, my second year of law school was about 15 years ago smart ass!

Posted by: seirra1 at February 23, 2012 9:22 PM

"adopted from the English common law."

I don't care about its pedigree - this law is wrong. (Thanks, RIBorn and Andrew.)

"and property just sits unused for decades."

So what?! Since when is regular usage a requisite component of ownership? Got some gold that's been lying around for a while, Mangeek? Maybe preserving wealth in these uncertain times? Tsk, can't have that (by your standard) - we need to relieve you of it so that it's put to use.

Posted by: Monique at February 23, 2012 10:13 PM

"But, you can't do that with land owned by the State."

Another point - once again, the Prince exempts himself from a law.

Posted by: Monique at February 23, 2012 10:18 PM

"I don't care about its pedigree - this law is wrong"

Well, if you don't care Monique I guess we'll just have to petition the US Supreme Court and have them overturn a couple hundred years of settled jurisprudence then.

"Since when is regular usage a requisite component of ownership?"

It's not, and has nothing to do with this or any other adverse possession case. (at least not on the part of the legal possessor)

Read the facts of the case and the courts reasoning. You may come out with a different view of the matter.

Posted by: seirra1 at February 23, 2012 11:46 PM

Just because something has been law for a long time doesn't make it right, of course, but adverse possession does have legitimate reasons behind it (I also prefer a 20-year term to 10). Real property is particularly dispute-prone because of the long periods of time, the difficulty of maintaining accurate borders, and the high stakes involved. This law simply requires people to "walk the land" they own every 10-20 years, which they should do anyway. Philosophically, maybe adverse possession isn't 100% consistent, but the burden is minuscule and it prevents a lot of fraud and decades-old disputes. It's better than at least 50% of the other laws on the books, especially those passed under the C ommerce Clause. 40000 laws were passed in this country last year alone, so I'm sure we can find some higher on the repeal list.

Posted by: Dan at February 24, 2012 8:44 AM

How would that be helpful, Sierra1? My objections have nothing to do with the case itself but to the law.

And while I stand by my opinion that this is a very bad law (how would you feel, for example, if the valuable waterfront property that you were due to inherit from your parents or grandparents turned out to have a large chunk carved out of it by a squatter neighbor?), there would be no need to petition the Supreme Court to at least blunt this law. I might be reluctantly amenable to a compromise: change state law to make the time period for adverse possession, say, five hundred years.

Posted by: Monique at February 24, 2012 8:53 AM

"how would you feel, for example, if the valuable waterfront property that you were due to inherit from your parents or grandparents turned out to have a large chunk carved out of it by a squatter neighbor?"

If my family owned valuable waterfront land I probably wouldn't be a cop monique and I'd spend my free time walking my property line making sure no one was encroaching on it!

In the present case the land looks to be wooded, possible part of a larger plat owned by a trucking company/junk yard. The plaintiff's honestly (although mistakenly) believed they owned the land in question. They treated it as theirs and made major improvements to it. They did this for 10-12 years while the land was still owned by the original owner (probably the trucking company). A parcel was then sold to the Lutheran Church which included the land in question. My guess is that had the Church done a proper inspection and survey of the property they would have easily discovered the problem with the land. They could have then negotiated for a reduced price seeing as they weren't buying as much real estate as originally thought. No good lawyer would have allowed them to proceed with the purchase when the property boundary was in such dispute.

Posted by: seirra1 at February 24, 2012 9:57 AM

Posted by mangeek
"Anyone who owns property ought to be checking up on it at least every few years."

There are portions of my property that I haven't seen since I "camped out" as a kid. So, if you think Adverse Possession is bad, try this.

Around 1985 I was "perambulating" with thoughts of a subdivision, and found the obvious "wetlands" had expanded beyond memory. Looking further I found that a developer had run a 4" pipe onto my property to drain his house lots. This expanded the wetlands. When I looked into having it removed to shrink the wetlands, I found that it had "been determined" that it was placed there before 1978, that made it "nature" by legal definition. I was powerless to remove it beause it would adversely effect wetlands. I fail to understand why this is not a "taking".

Posted by: Warrington Faust at February 24, 2012 7:26 PM

So the plaintiffs knew in 1994 that the land wasn't theirs and they continued to do what was necessary to steal it. After 1994 nothing about it was honest.

There are valid reasons to quiet title to land and adverse possession statutes are useful in that regard, but to allow thieves to intentionally steal property under the guise of adverse possession, as RI does, is not furthering those valid reasons.

The blackhearted trespassers need wait only ten years to steal a piece of property. The shortened time period and the rewarding of bad conduct has given rise to too many of these cases in RI.

Posted by: riborn at February 24, 2012 7:45 PM

I just read the decision, and think it is unfortunate. First, nothing was heard from the owner at the time the AP was initiated. Testimony that he had told the Plaintiffs to continue would have ended it. If he had given permission, use would never become "adverse".

Next, the plaintiffs occuppied under a description based on an actual survey. They knew where their property ended, and that they were making use of property they did not own. The title was not disputed, they knew, or should have known, that they were in the wrong.

The judge allowed "compiled plans" to be entered in evidence. For "compiled plans" think of assessor's maps. I have never had reason to enquire in RI, in MA assessor's maps, being largely "compiled plans", cannot be entered in evidence.

My understanding of AP, requires that there be some reasonable dispute of the boundary, or very long use adverse to the interests of the title holder. I don't think the case was well stated, nor the decision well reasoned.

When I was in law school, right after the civil war, I purchased a piece of property in Massachusetts. It was two lots, the subservient lot not being important to the use. I was given a deed to the second lot "for what it was worth", a title exam could not show title in anyone. So, I rented it for a few years, then sold it. About a year ago, a title insurance company tracked me down. They wanted to know what use I had made of the property, almost 40 years ago. So, I guess a claim for AP was finally in the works. Probably more to "quiet title" than to take it from any known party.

Posted by: Warrington Faust at February 24, 2012 7:58 PM

Watching the PBS program on Ireland and the "occupation" by Brits, the point was well made that no one would welcome someone to "take their land." In recognition of that priniciple of "adverse possession," a.k.a., capturing land by squatting or ignoring ownership rights through the Torrens system of Registration, the effect is to endow thieves with the privilege of stealing, however it may be done. It matters little whether the object is the land or the title, or what is under the land and the title. Before the Torrens registration system, such thefts were recognized through adverse possession because there was no secure method of identifying ownership, but that ended with registration and deed recording.

As for the judge, they are expected to have legal training, and are not permitted to make law, or carry out laws designed to be made illegal for the purpose of murder or theft. They are expected to have at least that level of competency, a.k.a., infallibility, sufficient to sit on the bench for the purpose intended, not to use it for self enrichment, or collusion with mobsters, with or without licenses to practice law, to rob, murder, and create mayhem. If that is the case, the form and forum matters little in being an instrument of crime.

Posted by: Pat at March 18, 2012 8:54 AM

Many of you are mistaken; I say that as someone who has been a defendant in an adverse possession lawsuit. Many states allow land to be registered, much like a vehicle; many nations are turning to the "Torrens System" of land registration; many states insist that the intent to take be posted for 90 days prior to quieting the title; some go to 40 or 50 years; many states mandate notifying the owner; while some simply mandate that the consistent payment of property taxes is intent enough. Rhody? Nope!
I worked with legislators several years ago to upgrade the statute, and we were able to pass something that forestalled the taking of property for conservation groups. How about legislation that allowed property taxes as a good faith indicator of ownership? Blocked by the RI Trial lawyer's Association.
For those of you insistent that me and my type are wrong, read the constitution, read John locke about the government's role in securing property rights. There have also been cases in which the state gets sued under the 5th amendment/takings clause, as the state is interceding, via 'public policy' into the private affairs of private individuals, and therefore owes compensation to the party who lost his/her land. That would end the RI Legislature's imbecility quickly.
If you like morons, idiots, do nothings, feather-dusters, gold-brickers, imbeciles, deadbeats and hustlers, you'll love it here. Me? I am moving to Mass where private property can be registered and never taken by adverse possession.

Posted by: peter gregory at April 5, 2013 5:01 PM
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