Talk:Adverse Possession - Oregon Adverse Possession

Blatant contradiction in Head

source : www.latimes.com

This is said to be common law, then totally statutory. I am not versed in the law in this area, however, one or the other must be false. (Or maybe, if it were historically under common law, this is not made clear). Bamkin 12:17, 24 May 2007 (UTC)

The modern principle of adverse possession is entirely statutory. The common law position is complicated as there were a number of forms of action, but none of them depended on showing possession for a period of time. Francis Davey 11:19, 8 August 2007 (UTC)

I don't understand the concern. The statutes are based on common law. If a set of circumstances is not clearly addressed by the statute, then the court will turn to common law (or case law) for guidance. Kaycee1217 (talk) 22:36, 5 June 2009 (UTC)

That's not quite right, the common law principle of immemorial user is different. Adverse possession is a purely statutory principle not based on the common law. Francis Davey (talk) 11:35, 6 June 2009 (UTC)

Still trying to understand. Doesn't the statutory law codify the common law that has been around for a long time? I'm in Oregon. We've had adverse possession here for many decades, but the statutes date only to 1990. And if you read the case law, you find many nuances that are not addressed by the statute. In fact, if you go to case law, you find that an adverse claim that "vested" before 1990 is not governed by the statute. All you have left is the common law. Kaycee1217 (talk) 15:28, 6 June 2009 (UTC)

I've put a little bit of history in the main article which traces how adverse possession originated as a doctrine. In England and Wales its purely statutory, dating back in the form we now know it to a statute of Henry VIII. For some reason this appears not to have been carried over into the law of your state (or a later statute of James I still before independence). I know there's some complexity about how older statute law was passed on after independence (as I understand it some statutes were adopted others were not) so it looks like Oregon may have started fresh and possibly reanalysed the law. I don't know but I'd be interested to know how its worked out there. I notice in the article someone says that adverse possession has something to do with laches, which of course would (from a strict understanding of common law) be impossible since adverse possession deals with legal not equitable rights and laches is a mere equitable defence. But it may be that the idea has been re-analysed over in the states like so many other things. Can you comment on how things come to be the way they are in Oregon? What does it mean for something to be "common law" there? Francis Davey (talk) 22:27, 6 June 2009 (UTC)

First, I'm a paralegal student (not even a law student), so I don't pretend to any authority. Just trying to be clear on my understanding. However, I'm involved in an AP case right now, so I've done a lot of research lately.

That means you are probably pretty well informed so I'm interested to know what you have to say. I wonder if you could mark things that are specifically US related in this article, or put anything in that is peculiarly to do with Oregon? Its hard for me when I see things that are wrong for my jurisdiction because I can't simply say "in the US X but in England and Wales Y" because I don't actually know what does hold true in the US. I've gone as far as reading a general university introduction to real property law in the US but haven't studied things much harder.Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Second, we may be dealing in a problem with semantics. My understanding of "common law" is that it's law created over the years by a succession of court decisions. In some areas of law (such as AP), those decisions have evolved over centuries and refer back to English common law. The common law may change over time as subsequent decisions modify them. In the U.S., common law can diverge in the 50 individual states, so a nuance in Oregon law might not be found in Maine, for example.

Yup, that might be it.See my later comments.Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Oregon became a state in 1859. The Legislature had a lot to do, so you couldn't expect them to come up with statutes for every eventuality. If a land dispute, such as an AP claim, came before a court, and the judge had no statute to guide his decision, he had to refer to the common law history. Maybe a similar case could be found in Indiana, so the Oregon judge uses that as a point of reference. Maybe the case is appealed and goes to the state Supreme Court. The SC issues a ruling, and -- presto change-o -- Oregon now has case law on Adverse Possession.

Case law = common law.

Aha! Two things to say on this: first a lawyer here would not (unless they were being pretty sloppy and probably not even then) equate case law with common law. Case law is all the law developed by judges in decided cases which are authoritative. That law includes lots and lots of interpretations of statutes particularly where the law is primarily statutory. Common law is, on the other hand, law that does not originate in statute but has been purely developed by the courts over time (and that dates back to a long tradition of doing so). Murder is a common law offence, theft a statutory one in England and Wales both have received considerable judicial interpretation. So we may be thinking of two different usages.

But even on my usage it sounds like Oregon judges put together a law of adverse possession without being bound by earlier statutes. The mind boggles slightly as to how that works. I have no experience of working in a newly constructed jurisdiction. But it may be right to describe that process as being analogous to the process that common law judges built the founding framework of common law all those years ago. You are then using the term in a different sense to me, but about a similar process. Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Decades pass and the case law (or common law) evolves in Oregon, but different judges read the law differently. Eventually, some legislator learns about a court ruling that seems unfair and decides "we really need to clarify this AP business with a statute." So he writes a bill, gets it passed, and -- ta-daa -- now Oregon has an adverse possession statute.

I need to double-check my statutory history. The prevailing statute in Oregon was passed in 1989 and has been in effect since 1990. My understanding is that there was no earlier statute, but that seems unlikely.

That would be very interesting and, if you find it out, it would be cool to get it in the article. A table of periods of time for AP by jurisdiction would be interesting (for instance) with references to statutes or case law. Francis Davey (talk) 17:05, 7 June 2009 (UTC)

In a nutshell, the Oregon statute written in 1989 codified the common law (or case law) that had evolved since 1859 and which probably grew out of similar common law in other states. The other states' common law would have dated to colonial times and would have been borrowed from English law. I'm thinking it doesn't really matter in the U.S. if the English law was statutory or not. American states did not adopt English statutes as their own. They may have created similar statutes, but they didn't have to. And if there was no statute, then the courts created the law. And that (unless I'm totally out to sea) is how common law was established.

So -- I don't know -- we might be dissecting a nuance in the language that really has no bearing on the application of the law.

Kaycee1217 (talk) 15:47, 7 June 2009 (UTC)

Cool. Thanks for that. There's a small pracical effect of the difference (common law v statute) in my jursidiction, partly because the Human Rights Act 1998 overrides common law but not statute so if AP were a common law rule, it could more easily be attacked for breach of various kinds of right. This may seem weird to you but its how it works and why it may seem more important to me than it might to others. There's also other differences. I guess we just need to make sure we are consistent and clear in the article. Is it accurate (as far as it goes) for your jurisdiction? Francis Davey (talk) 17:05, 7 June 2009 (UTC)

Help with POV section on the effect of adverse possession

source : abrowninglaw.blogspot.com

At the moment the section of the article that deals with the effect of the limitation period running out is POV, the problem is its unclear *which* POV. Can someone locate a jurisdiction where its true please. I do wish editors would do this as a matter of course.

In my jurisdiction (England and Wales) expiry of the limitation period extinguishes title in unregistered land. The adverse possessor becomes the legal owner of the property, not the equitable one. I suspect that in most common law jurisdictions outside the US that is true where land is unregistered.

For registered land the registered title holder becomes trustee for the adverse possessor.

I'd like to sharpen this up. Please could someone clarify that it works that way for them.Francis Davey 22:13, 23 September 2006 (UTC)

No-one has said anything, so I'll assume I can go ahead and change it. If anyone knows better, they can give some precise indication of which jurisdiction they know about. Francis Davey 15:49, 21 October 2006 (UTC)

I suggest you just go ahead and change it (making it clear of course which jurisdiction you are writing about). If somebody has writen about precise law without mentioning jurisdication, the information is not particularly useful... Bamkin 12:25, 24 May 2007 (UTC)

Squatters rights

source : www.huffingtonpost.com

Was the squatter's rights page deleted? --Rj 05:24, Apr 24, 2004 (UTC)

The page was squatters' rights listed for cleanup, and redirected to adverse possession. You can still see the history. Cecropia 05:52, 24 Apr 2004 (UTC)

This adverse possession article, in discussing permissive use, says, "A lawful owner may also restart the clock at zero by giving temporary permission for the occupation of the property, thus defeating the necessary "continuous and hostile" element." This "clock" refers to the period of time in which an adverse claimant is occupying the disputed land. If the occupation must be for 20 years and 10 years has gone by and the lawful owner says, "I see you built a tool shed on my property, but that's okay because I don't use this corner anyway, and I'm a neighborly guy," then the adverse claim is halted. But I disagree that the owner's permission would "restart the clock at zero." That implies that if another 20 years go by and the lawful owner says nothing, then the adverse claim is legitimized. Case law, at least in Oregon, clearly says that once permission is given by the lawful owner, the adverse claim is halted forever.

"Permissive use, no matter how long continued, is not adverse, and when proved, denies the adverse possession." Scott v. Elliott, 253 Ore. 168; 451 P.2d 474 (1969)

"Acts done by permission never ripen into title by adverse user." Laurance v. Tucker, 160 Or 474, 480, 85 P2d 374 (1938)

Kaycee1217 (talk) 16:03, 6 June 2009 (UTC)

Discussion of possible merge with squatters rights

source : www.oregonlive.com

There appears to be some overlap or conflation of the concepts of squatters, homesteaders and adverse possessors. The latter may acquire legal or equitable ownership of property through the inaction of the rightful owners in timely evicting them. Do squatters have any ownership right, or is it more of a simple trespass that has failed to meet all the requirements of adverse possession? For example, can you secretly squat? This would not lead to any rights of a.p. because a.p. must be open, continuous and notorious, such that an ordinary prudent owner would note the hostile presence and is required to take steps to stop the clock. If someone "gets tired" of having you squat, can the owner of record evict you or tear down the premises, even if the statute of limitations for trespass has expired? Under a.p. law, the owner of record is no longer the rightful owner and has no further right to enter the a.p. property, once the a.p. is completed. In fact, the new owner must now exclude or evict the former owner if he tries to enter. Right? A merge may be possible, but squatting seems more of a temporary thing, as compared to complete transfer of ownership by process of adverse possession. Lupinelawyer 29 June 2005 05:05 (UTC)

I agree. “Squatter's rights” is not just a synonym of adverse possession. Legislation like the Preemption Act of 1841 gave rights to squatters apart from statutory or common law adverse possession rights. Also, the concept can also refer to laws that make it difficult to evict tenants or trespassers and even more mundane usages such as policies that allow on campus students to get first “bid” on the dorm room they had the prior term. Xlation 18:03, 6 September 2005 (UTC)

In the US, at least, Squatter's Rights is NOT a synonym for Adverse Possession. Rather, it is a specific type of adverse possession, and is in fact the most difficult type for the disseisor to win. I've added text to the article to that effect. BTW, I have not verified this, but I've heard that some jurisdictions of the US specifically bar Squatter's Rights, but all jurisdictions have some allowance for adverse possession. Disposableman (talk) 19:46, 23 July 2010 (UTC)

famous examples examples of adverse possession in action?

source : www.heraldandnews.com

It would be nice to include a section listing actual cases of adverse possession. Famous example would be best but even obscure cases would be interesting if they were recent.

Also, examples from as many different jurisdictions as possible would be nice. E.g. are there examples of adverse possession in the USA? Funkyj 18:32, 21 May 2007 (UTC)

There are myriad examples of adverse possession in America. From my Cases and Materials on American Property Law, 6th Ed., by Kurtz, Hovencamp, and Brown, these cases are offered: 1. Tapscott v. Cobbs (52 Va. (11 Grat.) 172); Jarvis v. Gillespie (155 Vt, 633, 587 A.2d 981); Mannillo v. Gorski 54 NJ 378, 255 A.2d 258); Carpenter v. Ruperto (315 N.W.2d 782). â€" Preceding unsigned comment added by 129.255.228.78 (talk) 14:12, 1 October 2014 (UTC)

In UK squatting is always a case of adverse possession, but is oft a case of being unable to trace the rightful owner, any heir, or other next of kin. Council or business tax must be paid from the very first day of occupation/possession. After 10 years possessive freehold is possible, at that point we can purchase legal insurance for cs. 1% of the market value, which protects us from repossession by the rightful owner during the further 2 yaers to absolute possession.

In the case of Crown property, the figures double, from 10 years to 20, followed by a further 10 years to absolute possession. Finding a suitable plot to squat in UK is not so easy, and it pays to do the necessary rearch/"due diligence" before investing any time, effort, or any other resources in a possible squat. A search of Land / Probate Registry is now possible online, subject to knowing the exact address of the property, and the ID of the relevant, or latest, rightful owner.

I am currently involved in taking up squatter's rights on a large commercial/industrial property, currently used by a one man developement firm, as bait for an online fraud. Col-Aitch (talk) 21:15, 3 September 2011 (UTC)

Shouldn't there be a discussion of the progression?

source : www.oregonlive.com

It would be nice to include a discussion of AP from Roman law. Additionally, it seems inappropriate to discuss AP without explaining that it can be used as a defense to a claim of trespass, or an eviction. Finally there should be applications for AP as it applies to tenants and landlords as well as a discussion of AP of chattels. I'm not willing to take this on, but this article seems far from even scratching the surface.

Seems Unjust

source : www.heraldandnews.com

Hasn't anyone in the legal profession questioned the fairness and reasonableness of adverse possession? If a hostile person intimidates a landowner for a sufficient period, or if the landowner is disabled and has difficulty patrolling his land, the government will punish the victim and reward the criminal? Would anyone seriously propose this now, if it weren't traditional? â€"Preceding unsigned comment added by 71.139.26.171 (talk) 21:35, 21 October 2007 (UTC)

There have been challenges to the justice of adverse possession in my jurisdiction, but it has served a very important purpose in a system of unregistered land, namely that if someone has occupied land for a sufficiently long period of time they (and anyone buying from them) can be sure that there was not some hidden defect in their title a long time in the past. We simply can't go back to the beginning of time and make sure that all transactions were legal back to then, there has to be a cut-off point. The periods are quite long (12 years for unregistered land) and the kinds of situations you envisage do not happen in practice. Adverse possession takes place usually where a landowner has forgotten the land. With registered land, the doctrine has been effectively abolished. By the way it is not traditional, its a recent invention (relatively speaking) the ancient law knew nothing of it. It was invented later on. Francis Davey 08:12, 22 October 2007 (UTC)

The meaning of the term "hostile" was not the same in days of yore as it now is. It does not refer to a bully taking over one's land. In the days before accurate surveys and formal title records, it was just another term for adverse, as in hostile or adverse to the owner's interests. Anyone who owns undeveloped or unmarked property should "patrol" it periodically or hire someone to do so. If a neighbor is encroaching with a fence, structure, driveway, or even a hedge row, the mere filing of a legal action for ejection will stop the tolling of the adverse possession clock until the matter of trespassing is resolved. If the public is using it for a shortcut, it probably will be necessary to put up a fence and a 'No Trespassing' sign to assert the owner's rights. Otherwise, the path could become a public easement and complicate later sale or development of the property.

--NameThatWorks (talk) 22:36, 3 June 2009 (UTC)

You are confusing prescription and adverse possession. Adverse possession applies to the adverse control of land and the eventual acquisition of ownership over it. It does not apply to easements. The process that you describe is one of prescription which has a different legal basis in common law. I realise that in much of the US the two have been amalgamated as ideas (you hear of "adverse easements") but then the basis is statutory and developed. Historically they are quite different. Francis Davey (talk) 16:37, 4 June 2009 (UTC)

Surely there is a policy grounding too? To disincentivise the abandonment of such a valuable commodity as land? â€"Preceding unsigned comment added by 84.203.70.88 (talk) 13:16, 25 January 2009 (UTC)

The law does seem unjust, but it does seem to have validity in some rare situations. Keep in mind that the burden of proof on an adverse claimant is very high and the time-period demanded for holding the land is very long. One component in the Oregon statute is that the claimant must honestly believe the land to be his. But that's not all. The claimant must use the land continuously and exclusively without objection OR permission from the true landowner. The claimant must use it in a way that would signal to the true landowner that the claimant is using the land as his own. In Oregon, the land must be used in this way for at least 10 years before a claim can be made. (I'm told that 20 years is more typical in other jurisdictions.) AND the claimant must have clear and convincing evidence that he's met the AP requirements. So it ain't easy.

Most of the AP claims I've seen involved strips of land (300 feet by 20 feet, or something like that) along a common border. Maybe a fence was placed 20 feet within the border of Property A and Property B is purchased by someone who is told "the fence is the property line." Landowner B starts mowing the lawn up to the fence. He puts a roadside stand there and sells apples every fall. Landowner A, whose house is at the far end of his 10-acre property, never objects to the roadside stand and never says, "Nice of you to mow that section of yard, but you might not realize you're actually on my side of the line. But I never use this anyway, so it's ok with me and good luck with your apples." If Landowner A never objects and never gives permission, and if Landowner B assumes the strip is his and uses it as his own, the AP law allows Landowner B to claim the land as his own.

Let's say Property A is sold, and Landowner A2 has the place surveyed and he complains to B about the use; B would understandably feel cheated after using the land as his own for so long. And maybe mowing the lawn and selling apples isn't a big deal, but you could envision a more serious encroachment, where significant money was invested in a building or something. The law basically requires the owner of Property A to be minimally diligent in paying attention to his land. Owner A doesn't have to do very much to maintain control of the land but he has to do SOMETHING at least once in a long while. Kaycee1217 (talk) 15:05, 7 June 2009 (UTC)

No "Why"

source : www.wweek.com

The discussion above about adverse possession being unjust got me thinking about why there isn't anything in this article (like in the header) describing why adverse possession exists. It may seem unjust, but from my understanding (that is, from an American law student's perspective) is that it exists to uphold the presumption that alienation of land is a good thing. We (in America) don't like land being held in large estates perpetually. Therefore, we give the "common man" the chance to adversely possess the "sleeping owner," who in all likelihood isn't watching over the vast amount of land he owns for a long period of time. Is it the same in England? I'd like to refine that statement and add it to the header if no one objects. What does everyone think? RMelon (talk) 22:11, 8 December 2007 (UTC)

That may be right in the US, but its not the origin of the rule. Adverse possession originates in the principle of limitation of action. That is that the courts won't look back beyond a certain time horizon in the past in order to establish existing rights. That is a practical measure to avoid endless disputes of what may have happened decades or centuries ago. It also means that, after a while at least, everyone can be certain about who owns property even if there might have been doubt in the past. Certainty of ownership is something much sought after in systems of title that do not involve title registration. The European Court of Human Rights has thought that adverse possession is not properly justified for registered land, though that only has historical interest as the basic principle has been modified to something much more owner friendly. Francis Davey (talk) 16:45, 4 June 2009 (UTC)

PS - I'm a lawyer and I know a lot about this. I rather gave up on wikipedia's legal articles for reasons I have explained elsewhere ad nauseum but am happy to help. I don't log in much anymore, but feel free to drop me an email if there's any point of law that needs clarification. It would be great to tidy up WP's law articles (which are mostly dreadful) but I don't see it happening any time soon. Francis Davey (talk) 16:47, 4 June 2009 (UTC)

It seems that there are multiple justifications for the doctrine. The justifications for limitation of actions in general are those that Frances Davey has outlined but there are extra specific justifications for adverse possession laws in respect of land, which do not only extinguish the dispossessed landowner's right of action but also his title to the land. These include the desirability in ensuring the alienability of land which is a fundamentally important but finite commodity and, as FD says, certainty of ownership. A "Justification" section would be nice but would be fraught with difficulties as all this illustrates; what were the justifications, what are the justifications, which ones do we discuss, how do they overlap?--Bunburya (talk) 18:57, 8 June 2009 (UTC)

Very few people have much sense of (or knowledge of) history and the reasons for the existence of things with a long history are constantly reinvented for many reasons. For example the Jury was once seen as a means of royal oppression since it could be used to obtain convictions much more easily than other forms of trial (eg by cold water or by compurgation) and the increasing use of trespass as a form of action was because it brought with it trial by jury, defendants much preferred a wager of law. Now Juries are seen as a bulwark of liberty. Similarly concerns about the ease with which land may be alientated are more modern (in English law) than the problems of limitation of action, the Crown really didn't want (or permit) land to be alienated and its not until 1290 that something like a sale of land is put onto a proper statutory footing. Bunburya's point about the distinction between losing a cause of action and losing title is also meaningless in the mediaeval context: there was not a distinction made between procedural and substantive law in the way we now do. Indeed "title" didn't mean quite the same anyway, if you can't claim it its not yours. Hence the justifiction question is going to be fraught. Francis Davey (talk) 19:23, 13 June 2009 (UTC)

Well it seems to me therefore that we would be hard-pressed to create a satisfactory account of the historical justifications of the doctrine. The question remains, then, whether there should be a section on modern justifications or no section at all. --Bunburya (talk) 17:42, 16 June 2009 (UTC)

Can someone explain what is meant in this discussion by "alienation of land" or "alienability of land"? I'm not familiar with this usage. Thanks. Kaycee1217 (talk) 15:20, 13 June 2009 (UTC)

Alienate means "give away" roughly speaking. Your founding fathers thought that people had inalienable rights, that is rights that couldn't be given away. If I own land and sell it to you, my family loses the land forever. In a society where land is really important, as it was in the rural society in Mediaeval England, it was a real problem for both large families to lose parts of their estates (the heirs would lose out) but also for peasants to lose their entitlement (a problem in many third world countries now). But the law now strnogly favours alienation because we live in a different kind of time. Francis Davey (talk) 19:23, 13 June 2009 (UTC)

Recent Examples

source : www.heraldandnews.com

Undid edits where someone removed the recent examples section. Please suggest modifications to the text before just deleting it.

TwakTwik (talk) 01:55, 9 December 2007 (UTC)

• The material concenrs living individuals and seems to serve little purpose in documenting the legal concept of adverse possession. Citing this as the sole "recent example" looks a lot like a dig at the subjects. I think we can do without it. Guy (Help!) 18:37, 9 December 2007 (UTC)
• Agree with JzG. Even if useful, it is probably not the most legally relevant case, and the detail was such as to be overall negative rather than legally helpful. FT2 ^{(Talk | email)} 18:47, 9 December 2007 (UTC)

We need to find more examples and document them. Its a start. I am ok with changing the text and removing the names, but it is important to note that this centuries old law is still in effect. How about this:

"Recent examples of adverse possession include a land dispute in Boulder, CO. [link]".

The point is that this is not a law that gets exercised often, when it happens, its news.

TwakTwik (talk) 20:42, 9 December 2007 (UTC)

Personally, "recent examples" was the first section I looked for in this page. Illustrations of "Squatters rights" in practice are the best way to portray the meaning of the concept and to provide clear signposts for recent literature on the subject, (which is what Wikipaedia is best for). BlueRobe (talk) 03:24, 19 June 2010 (UTC)

Actually, the news is that it's getting exercised more and more often. There are currently (as of July 6, 2008) TWENTY-FIVE adverse possession cases in Boulder County, Colorado, alone! A law was recently passed there because of the outrage at the Boulder case cited above. It seems like quite an omission not to include this. 52.129.8.49 (talk) 22:29, 9 July 2008 (UTC)

Private v public land

I am informed that adverse possession cannot occur (in England and Wales) on public land. By this i understand to mean highway and especially highway in existence before 1835 and/or before the Finance Act of 1910 which documented the then extent of the highways.

Can this be confirmed? If this is correct then it should be noted in the main article. Salisbury-99 (talk) 11:06, 11 September 2008 (UTC)

I don't believe it is true. That's my assessment of the (albeit complex) state of the authorities. In fact I blogged (twice) about two recent cases that illustrate my point. In one case the trial judge thought (wrongly) that authority did prevent adverse possession of a highway something I make clear in my blog was mistaken. In another the fact that it was possible to adversely possess the bed of the river Thames (despite it being subject to public rights of navigation) was rightly conceded by counsel for the river authority Charles Harpum a former law commissioner and leading authority on property law. The former case is being appealed which makes me feel a little better. If you keep sheep on a field that is not yours (and is now unregistered) then you adversely possess it, the fact that there's a public footpath running over it should not interfere with that. Francis Davey (talk) 16:42, 4 June 2009 (UTC)

One requirement for adverse possession (at least in Oregon) is "exclusive use." It'd be kind of hard to prove exclusive use of a highway. Seems to me that any sort of maintenance work done by the proper owner of public land would extinguish the adverse claim. Kaycee1217 (talk) 16:45, 7 June 2009 (UTC)

There's a principle of our law that you only have to show sufficient possession as would be consistent with the kind of land (if you read my blog posts you'll see I refer to it) so to adversely possess a marsh you might only need to hold a grouse shoot over it rather than build on it. What that means is that you can adversely possess (say) a footpath over a field by grazing sheep on it (a normal way to adversely possess a field) while still permitting the public to pass over it. Where a highway has been adopted (in a certain capacity) by a highway authority (as most roads have) there's a statutory vesting of the surface into the hands of the authority which cannot be overriden by adverse possession, making AP of such a road very difficult indeed (essentially impossible, though the airspace or ground beneath might be possible). Francis Davey (talk) 17:08, 7 June 2009 (UTC)

I am the lawyer that Kaycee works for... and this adverse possession discussion is fascinating because the US built its statutory and non-statutory law on English law. Because each state is sovereign in certain areas (this would involve a constitutional discussion), law has developed differently in each state, but for the most part, all of the states (except Louisiana)share the basics. In the US, a person can never make a claim against the US government for adverse possession. The US has vast expanses of open land, and the federal government has held these lands since the time of westward expansion.

Think about the Homestead Act - the Federal government owned virtually all of the land in the territories west of the Mississippi, and needed people to go there. The law was simple... you get yourself out there via the Oregon Trail, etc., stake your claim to land up to 340 acres, by living there so many months each year and improving at least a percentage of the land by clearing it, fencing it,... something fairly minimal, then after 2 - 5 years of this, you file your claim for that land at the local territorial government office, and it was yours. There was still land available in the western US in the early 1900's. In the US, we can trace the origins of ownership quite easily compared to the rest of the world.

The federal government owned all of the land west of the Mississippi (and in earlier days, the individual state or commonwealth governments owned all of the land in the eastern portion of the US that had not been specifically granted to a person by the King of England). The federal or commonwealth governments remained as sovereign owners over all land not specifically claimed pursuant to that state's or the federal government's laws. Early in our history, the federal government saw the importance of maintaining sovereignty over all navigable waterways. The US government still maintains this ownership and dominion, and all navigable waterways are under the authority of the US Army Corps of Engineers.

The framers of the US Constitution wrestled with what powers should be held by the states because they wanted to ensure that the federal government did not get too heavy handed. All water that the US government does not consider to be navigable, is under the jurisdiction and control of each state. This is where it get gets tricky. In Minnesota for example, the state owns the beds and banks of all rivers and all lakes of a certain size (so ponds are excluded, generally). In Oregon, the state does not own the beds and banks of lakes. They are owned by individuals unless the state or federal government owns them. The state government in Oregon, however, owns the beds and banks of all non-navigable streams and rivers, but that law is tempered by private riparian rights. Oregon went one step further in the 1960's under Governor Tom McCall and gave the state government sovereignty over the Pacific coastline up to the line of mean high-tide. In contrast, California allows private ownership of beaches.

So, short answer... the beds and banks of navigable waterways are under US government ownership, and it is impossible to adversely possess US government land. In most states, there can be no claim of adverse possession to waterways and lakes or state owned land, or even county land or land held by a municipality. These state laws are difficult to generalize, however, because each state may treat land held by a government unit a little differently.

Kaycee1217 (talk) 20:59, 7 June 2009 (UTC)

Thank you very much, that injects some very useful information. Conversely in England and Wales it is quite possible to adversely possess land owned by anybody, including the Crown. The Crown still owns some land (some of it quite extensive) and therefore has to be careful to make sure it is not adversely possessed and lost just like any other land owner.

A curiosity is that we never abolished the feudal system we just let it fade away (this is typical of our approach to land law). Its existence makes almost no difference, but there is one subtlety that comes up for Crown land. The Crown, as the top of the feudal tree, need not hold any estate in land it owns. This is an alien concept outside the UK I think, but the point is simple. A "freehold" is really shorthand for the estate "fee simple absolute in possession", that is the ownership "in fee" as a feudal subject of the Crown but of course the Crown can hold land without any feudal grant (without fee) so there's quite a bit of land in the Crown Estates that is not freehold land, it is held by the Crown "in demesne".

When we started registering land under a sort of Torrens title system, we only set the system up to register estates (freehold, leasehold and now commonhold) so the Crown couldn't register any of the land in demesne because there is no estate. This would have meant that under the new land registration system we have (that makes adverse possession next to impossible to do by stealth) the Crown would have continued to be vulnerable, so as of the beginning of this century the Crown has been able to register its demesne lands.

This has practical application because about 700 estates each year become demesne land by the process of escheat - usually when a company goes into liquidation or is dissolved and the Official Solicitor decides that the land is onerous and not worth taking up under bona vacantia. So the supply of demesne land does not run out.

Sorry for that digression - on rivers ownership is complicated but often in the hands of executive agencies (like the National Rivers Authority) or in corporations like the Port of London Authority, but there is plenty in private hands and all of it (it would seem) is open to adverse possession. The moral I think the land registry would like to get out there is - better register that river 8-). Francis Davey (talk) 08:14, 8 June 2009 (UTC)

Example does not concern adverse possession

The last paragraph of the Purpose section does not appear to discuss adverse possession. â€"Preceding unsigned comment added by 75.83.187.215 (talk) 07:12, 4 February 2011 (UTC)

That sections was rather confused. I've removed two paragraphs. The example at the end looks more like a form of proprietary estoppel (or whatever the equivalent is in your jurisdiction). Certainly not AP. Francis Davey (talk) 09:10, 4 February 2011 (UTC)

Please educate yourself on what common law means, and not just in Oregon, as well as what adverse possession is. In Oregon and most other states real estate subjects are subject to a license of the state as a co-owner and no students or universities or colleges may have one. There is already to much garbage disseminated in the internet under false pretenses of being real estate license related agencies and the economy does not need any more reasons for exclusions from free enterprise system than self empowered students without a clue have already caused, world wide. You can contact any real estate agency of any state for advise on where to go for competent help and information in regards to real estate issues, before someone becomes other meanings in the term "real estate". â€" Preceding unsigned comment added by 67.171.203.4 (talk) 23:42, 24 May 2011 (UTC)

Mnemonics

There's been something of an edit war about the addition of a collection of mnemonics for the (supposed) pre-requisites for adverse possession. As they stand they clearly have no place in the article for two reasons: first they aren't (yet) encyclopaedic information. If they are systematically used or recommended in law school or in a textbook then if that use is notable and properly cited there might be a place for it. Notability being just as important as a citation.

The second problem - which relates to the first - is that they represent a particular world view on what elements might be needed. The elements required differ across jurisdictions (and in particular outside the US things aren't the same). Obviously with a clearly cited reference to a particular system (eg, "in Harvard Law School....") that problem may go away.

Even then it may simply not be sufficiently notable in its own right to mention the mnemonic. Francis Davey (talk) 08:30, 16 July 2011 (UTC)

style question

It seems to me that this article is a bit too legalistic in style. I can follow it, but I have to concentrate to keep track of the grammatical structures, and I'm worried that someone without academic training might find their head swimming. Is this just my imagination, or should we do some copy editing to make it more accessible? --Ludwigs2 18:59, 24 October 2011 (UTC)

Flawed Logic in the Article

This article is based on a correct premise (that the Common law concept of adverse possession derives from the Roman law concept of usucapio), and ends by stating that jurisdictions derived from civil law have "a legal doctrine called acquisitive prescription, which is derived from French law".

However, French law (in fact, all Continental European Civil law systems) derive from Roman law, and incorporate the theory of usucapio. In fact, Civil law systems are more closely tied, linked and related to Roman law than Common law countries. Quoting from the Roman law article:

By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.

Only England and the Nordic countries did not take part in the wholesale reception of Roman law.

Also:

As a result, the English system of common law developed in parallel to Roman-based civil law.

And:

Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.

Finally:

Where the legal practice is based on a code, many rules deriving from Roman law apply: No code completely broke with the Roman tradition. Rather, the provisions of Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.

Current wording seems to suggest that adverse possession is tributary to Roman law directly, while acquisitive prescription comes from some place else. 54.240.197.233 (talk) 10:59, 10 January 2014 (UTC)

What is your authority for the law of adverse possession deriving from usucapio? Francis Davey (talk) 13:39, 10 February 2014 (UTC)

Article needs attention by a lawyer

The opening sentence: Adverse possession is a process by which premises can change ownership by using a property for a period of time without paying for it. is so poor, that it is essentially false. For example, if a property has berry bushes, and I use the property habitually for collection of berries, but otherwise don't occupy it, I may be guilty of theft, trespassing, and possibly vandalism, but I will never be able to acquire title to the property. At best, I may acquire a continuing right to collect berries, but that is all.

• Paying for the property is only one of many ways I might legitimately acquire title to it. Paying money is tangential to the issue; we shouldn't say it that way. We may in fact pay for such use as we make of the property (i.e. pay for the berries), and that still won't give us title to it.

• The word use is ambiguous; the property must be physically occupied or possessed, not merely used, and possession must be adverse to the rights of the true owner, open and notorious (not secret, and obvious to the true owner or others), continuous, and possession must not be under any claim of right (i.e. a claim of right may be adjudicated yea or nay, but such claim precludes a claim of adverse possession).

Sbalfour (talk) 21:01, 8 February 2014 (UTC)

O arrow of time, turn back in thy flight

Stemming from Roman law and its antecedent, the Napoleonic Code ....

Was some word other than antecedent intended here? â€"Tamfang (talk) 03:08, 13 March 2014 (UTC)

Good point. Corrected. Famspear (talk) 11:56, 13 March 2014 (UTC)

Years of declared occupation by state

File:Adverse_possession_US.pdf is a start but it doesn't really help very much in terms of explaining specifics. I can't easily tell which shade of green is which, which state is which, and giving ranges instead of exact numbers leaves us in the dark.

I'd like to get specifics together to begin constructing a table with the exact number of years by each state alphabetically for us to include, which would also allow us to support it with references.

We could then use that (in case laws change) to check if the above image is still correct as it may lose correctness with time.

Given that Minnesota is given a range at all when adverse possession is impossible there leads me to think we should perhaps remove the image and use a table. Ranze (talk) 01:17, 6 October 2016 (UTC)

508.2 v 541.02

Both are Minnesota states (sic: did you mean "statutes"? NewsAndEventsGuy (talk) 14:12, 6 October 2016 (UTC)) and I don't really understand how they work in respect to one another, as the first seems to outlaw adverse possession while the other allows it after 15 years. Compare:

• 508.02 REGISTERED LAND; SAME INCIDENTS AS UNREGISTERED; NO ADVERSE POSSESSION.

Registered land shall be subject to the same burdens and incidents which attach by law to unregistered land. This chapter shall not operate to relieve registered land or the owners thereof from any rights, duties, or obligations incident to or growing out of the marriage relation, or from liability to attachment on mesne process, or levy on execution, or from liability to any lien or charge of any description, created or established by law upon the land or the buildings situated thereon, or the interest of the owner in such land or buildings. It shall not operate to change the laws of descent or the rights of partition between cotenants, or the right to take the land by eminent domain. It shall not operate to relieve such land from liability to be taken or recovered by any assignee or receiver under any provision of law relative thereto, and shall not operate to change or affect any other rights, burdens, liabilities, or obligations created by law and applicable to unregistered land except as otherwise expressly provided herein. No title to registered land in derogation of that of the registered owner shall be acquired by prescription or by adverse possession, but the common law doctrine of practical location of boundaries applies to registered land whenever registered. Section 508.671 shall apply in a proceedings subsequent to establish a boundary by practical location for registered land.

• 541.02 RECOVERY OF REAL ESTATE, 15 YEARS.

No action for the recovery of real estate or the possession thereof shall be maintained unless it appears that the plaintiff, the plaintiff's ancestor, predecessor, or grantor was seized or possessed of the premises in question within 15 years before the beginning of the action.

Such limitations shall not be a bar to an action for the recovery of real estate assessed as tracts or parcels separate from other real estate, unless it appears that the party claiming title by adverse possession or the party's ancestor, predecessor, or grantor, or all of them together, shall have paid taxes on the real estate in question at least five consecutive years of the time during which the party claims these lands to have been occupied adversely.

The provisions of the preceding paragraph shall not apply to actions relating to the boundary line of lands, which boundary lines are established by adverse possession, or to actions concerning lands included between the government or platted line and the line established by such adverse possession, or to lands not assessed for taxation.

Maybe my reading comprehension is just off right now... Ranze (talk) 01:22, 6 October 2016 (UTC)

The problem is that you are working with WP:PRIMARY sources and are attempting to explain the legal application of statutes to the real world. That is the job of judges. When we try to interpret this stuff ourselves, we're doing WP:Original research, which is a no-no. By coincidence, I have some personal knowledge on this, so I'll tell what I (think I) know and maybe that will help you in a the search for reliable (and secondary) sources. In MN you can't AP against registered land outright. Say you register 40 acres and live in Timbuktu. I put up a fence around your 40 and live there for 50 years like it was mine. At any time you can give me the boot since I can't AP your registered land in MN. Now change it. Say you live there and I live next door. We have a fence on what we thought was the property line. The fence happens to be 100 feet on your side of the actual (invisible) survey line. Thinking I was on my own land, I built a house on my side of the fence, but the dirt under my house is part of your legal description. 50 years goes by. When you discover the error, you order me to tear down my house and get the hell off your land. I have a vague sense that MN has some boundary line provisions - not adverse possession per se - that might protect me. But that's as far as my shaky and incomplete knowledge goes. Good luck digging deeper. NewsAndEventsGuy (talk) 14:21, 6 October 2016 (UTC)