Adverse possession and prescriptive easements:

How to steal your neighbor's property and avoid jail
reprinted courtesy Bob Bruss 6/13/07

First step: Get into a squatting position

Editor's note: Robert Bruss is temporarily away. The following column from Bruss' "Best of" collection first appeared Sunday, June 23, 2006.

"Thou shalt not covet thy neighbor's property" is part of the Ten Commandments. But real estate law in every state says it is all right to steal your neighbor's land without going to jail if you comply with state 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.

The selfish reason is the state wants to collect as much property tax as possible by keeping property in use.

But when a property is vacant and unused, the rightful owner often fails to pay the property taxes. So state laws encourage stealing property and returning it to the property tax rolls.

ARE THE LEGAL BASIS FOR STEALING REAL ESTATE. Every state except Louisiana adopted variations of English common law in the 1800s and early 1900s. Louisiana chose the French Napoleonic Code, 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 real estate without permission and pay the property taxes for the number of years required by state law, I can eventually claim full fee simple absolute ownership of your property.

For example, the house adjacent to mine has been vacant about three years. If I moved in and continuously occupied it, paying the property taxes when they come due, I could eventually acquire title to this property. However, I'm not going to do that.

The reason is I observe the legal owner occasionally visits his empty house. He has even applied for a building permit to remodel it. If he found me living in his house, he would summarily throw me out as a trespasser 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. Each state has laws allowing two methods of stealing real estate without going to jail.

AND FULL USE. The most difficult method to steal your neighbor's property is "adverse possession." That means you must occupy the entire property without the owner'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 years without the owner's permission, pay the property taxes, and you can acquire full ownership by then suing the legal owner in a quiet-title lawsuit. It's that easy.

Texas and several other states have much tougher adverse possession laws, requiring "open, notorious, hostile, exclusive and continuous occupancy" for 30 years. Needless to say, not many Texans claim title by adverse possession.

Other states have adverse possession limits between these five- and 30-year extremes.

The nation's leading adverse possession case is Stevens v. 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 that he adversely possessed for 15 years the
San Francisco apartment building at 1899 Oak St. in the famous Haight-Ashbury District. Stevens showed open, notorious, hostile and continuous possession. However, he was unable to prove payment of the property taxes. Therefore, he lost his attempt to gain title to the building by adverse possession.

2. STEAL PART OF A PROPERTY BY HOSTILE USE. Perhaps you don't want to acquire a neighbor's entire property without paying, but you just want to use part of that property, perhaps to plant flowers or vegetables.

All you need is a prescriptive easement. The legal requirements in each state are usually the same as for acquiring title by adverse possession, but you don't have to pay any property taxes.

In other words, you must occupy a portion of your neighbor's land by open, notorious, hostile and continuous possession for the number of years required by state law. Interestingly, use need not be exclusive so you could share the prescriptive easement area with the property owner or another user.

However, permissive use defeats ever acquiring a prescriptive easement. If your neighbor says "Sure, go ahead and use part of my property," you will never obtain a permanent prescriptive easement.

Prescriptive easement examples include driveways, paths or any portion of a property that is continuously used without permission.

To perfect a permanent prescriptive easement, after the required number of years' use, the claimant should bring a quiet-title lawsuit against the titleholder.

ALL OR PART OF YOUR PROPERTY. Periodic inspection of your property is the best way to prevent someone from acquiring title by adverse possession or partial use of a prescriptive easement for the required 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 continuous hostile use without permission.

To illustrate, years ago when I was a summer student at Stanford Law School, one Sunday morning I got in my car with a few of my law school pals to drive into nearby Palo Alto for breakfast (we couldn't afford "brunch"). But the main drive was blocked with a barricade. The police officer directed us to a detour.

As a curious law student, I asked what was going on. He explained every summer Stanford blocks its private roads for a few hours on a Sunday to prevent anyone from acquiring a permanent prescriptive easement.

THE EASIEST WAY TO DEFEAT HOSTILE USE. If you are concerned someone might be occupying all or part of your property without your permission, there is a very easy way to avoid losing all or part of your property.

Just grant permission. Depending on state law, you can post a sign, record a notice or personally notify the hostile user that "permission to pass over my property is revocable." Consult a local real estate attorney for exact details.

Millions of individuals own real estate they rarely visit. Or, owners die and their heirs and friends don't know about a distant property they own.

For example, a few weeks ago I was talking with a
Florida friend who bought Arkansas real estate last year on eBay. He was extolling about 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 I go wrong?"

That is a property just begging for an adjacent owner to adversely possess or at least acquire a prescriptive easement.

Inspection is the best way to prevent loss of title or use of 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 you own.

The common law of adverse possession and prescriptive easements has valid purposes to promote property use and property tax collection. However, realty owners can prevent theft of all or part of their property by periodically checking to be certain nobody is occupying all or part of their real estate without permission. For more details, please consult a local real estate attorney.

(For more information on Bob Bruss publications, visit his
Real Estate Center).

reprinted courtesy Bob Bruss 6/13/07


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Peter Gelsey R (PB)

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