Have you ever noticed an abandoned neighborhood property you would like to own? Or would you like to use part of your neighbor’s property, perhaps for a path or driveway?
Today’s real estate lesson is “How to Legally Steal Real Estate Without Going to Jail.” To pass this course, you must comply with the tough rules for stealing all or part of a property.
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STATE LAWS ENCOURAGE LEGAL THEFT OF REAL ESTATE. After most states adopted English common law in the 1800s and early 1900s (except Louisiana, which still follows the French Napoleonic Code), stealing real estate became legal.
Often called “squatter’s rights,” there are two major ways to acquire all or part of a property belonging to someone else. However, if you don’t meet the state statute requirements, you could become liable for trespass damages to the rightful property owner.
Neither of the two methods to be explained can be used for property owned by any government agency or a public utility, including railroads.
The purposes of these common law rights are primarily (1) keep property in use rather than idle, and perhaps more important (2) keep property taxes coming in to the state for each parcel.
1–STEAL PARTIAL USE OF A PROPERTY WITH A PRESCRIPTIVE EASEMENT. If you just want to use part of a property, perhaps for a path or driveway, or maybe to plant your garden (presuming the legal owner won’t approve your use), you might become entitled to a permanent prescriptive easement.
To acquire permanent use of part of another’s real estate, you must meet the requirements of open, notorious (that means obvious), continuous and hostile use (without permission) for the required number of years in the state where the property is located.
But your prescriptive easement need not be exclusive as it can be shared with either the legal property owner and/or other prescriptive easement users. A major advantage of a prescriptive easement is it does not require payment of the property taxes. In other words, a prescriptive easement is completely free if you meet the legal requirements for the minimum number of years in your state. To make your prescriptive easement permanent, you must sue the legal owner in a quiet title lawsuit after you meet the requirements.
Most prescriptive easements arise on rural land where the legal owner doesn’t realize someone is using part of his property without permission. An example is walking or driving over your neighbor’s property without permission for the required number of years.
To prevent someone from gaining a permanent prescriptive easement over your property, there are two primary methods: (a) at least temporarily block the hostile use, such as by erecting a fence to break the continuous use, or (b) sue the trespasser for an injunction to stop the non-permitted use.
For example, when I was a summer student at Stanford Law School, one Sunday morning I wanted to drive into nearby Palo Alto. But my short trip was detoured by police who blocked off my usual route with a street barricade. The police officer politely explained that every summer Stanford blocks its private roads for a few hours to prevent anyone from acquiring a permanent prescriptive easement.
2–STEAL FULL PROPERTY USE BY GAINING ADVERSE POSSESSION TITLE. The second method of stealing someone’s real estate is by occupying the entire property. The legal requirements to get title by adverse possession are “open, notorious, hostile, exclusive, and continuous use” plus payment of the property taxes for the required number of years in the state where the realty is located.
California has the shortest adverse possession time of just five years. Texas requires 30 years. Other states are in between. Ask a local real estate attorney for details in your state.
Successful adverse possession title acquisition can be very difficult because the legal owner is likely to show up while the adverse possessor (i.e. “squatter”) is waiting out the number of years required.
If there is a mortgage on the property, the squatter should make the monthly payments or risk a foreclosure loss.
For example, several years ago after I wrote about adverse possession I received an angry letter from a Fresno, California reader. She complained about having occupied an abandoned house for three years and fixing it up to make it attractive. Then she lost possession when the mortgage lender foreclosed on the house and evicted her as a trespasser.
I politely explained she should have paid the mortgage payments in addition to paying the property taxes if she wanted to eventually gain title by adverse possession.
The most famous adverse possession court decision is Stevens v. Tobin (251 Cal.Rptr.587) from the California Supreme Court. Plaintiff Thomas W. Stevens, who brought a quiet title lawsuit against the legal owner, argued he adversely occupied for 15 years the San Francisco apartment building at 1899 Oak St. in the famous Haight-Ashbury District. Stevens proved open, notorious, hostile, exclusive, and continuous possession. But the California Supreme Court ruled he was unable to prove he paid the property taxes (the rightful owner had been paying the taxes) so Stevens lost.
HOW TO PREVENT THEFT OF YOUR PROPERTY. If you know somebody is using part or all of your property, but you don’t mind, you can easily prevent that hostile user from gaining either a prescriptive easement or title by adverse possession.
The simple solution is to grant permission to the hostile user.
But be sure to document your permissive use. Perhaps you have noticed posted signs or plaques imbedded in sidewalks such as “Permission to pass over this property is revocable at any time.” After consultation with a local real estate attorney, you might also want to record such permissive use, if allowed by state law.
WHEN REAL ESTATE THEFT IS MOST LIKELY TO OCCUR. Every year thousands of property owners die without close relatives. Many homeless people die and nobody knows if they owned any real estate.
The abandoned properties owned by these decedents are relatively easy for squatters to move into and eventually gain legal title. Also, many rural properties are owned by distant owners who fail to periodically inspect their realty which might be occupied by adverse possessors.
Even if you have a will or a living trust, to prevent adverse possession be sure your relatives, friends, and charity beneficiaries know what real estate you own.
SUMMARY. Prescriptive easements and adverse possession can lead to legal theft of partial use or full legal title. State laws allowing these legal methods of stealing real estate are intended to keep property in productive use with the property taxes paid. For full details, please consult a local real estate attorney where the property is located.
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