Use It or Lose It — Adverse Possession

The Los Angeles Times reports "This land is their land -- now," a story out of Colorado about the ancient legal doctrine of adverse possession.  According to the story, a retired judge and his lawyer spouse trespassed on a neighboring vacant parcel of land for over twenty years and then sued for title.  And won:

"There's a mythology of land ownership -- that if you own land, you can do anything you want," he said. Property rights are limited, he said. "This is one of those limitations: If you're not vigilant, it could be taken."

The law is based on a philosophy that land should be used, Denver real estate lawyer Willis V. Carpenter said. "If you don't use it and someone else does, they'll end up owning it," he said.

Comments

[Charley Foster]

Interesting. In Utah it was a little tougher. You actually had to pay the taxes on the land for 7 years before you could gain title to it.

U.C.A. 78-12-12. Possession must be continuous, and taxes paid.

In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party, his predecessors and grantors have paid all taxes which have been levied and assessed upon such land according to law.

[rht]

Hawaii's adverse possession scheme is also a little different. Haw. Rev. Stat. § 669-1. The statute of limitations is 20 years. Id. § 657-31. But article XVI, section 12 of the Constitution limits claims to less than five acres, and the claimant gets only one try every twenty years:

"No person shall be deprived of title to an estate or interest in real property by another person claiming actual, continuous, hostile, exclusive, open and notorious possession of such lands, except to real property of five acres or less. Such claim may be asserted in good faith by any person not more than once in twenty years."

See also Haw. Rev. Stat. § 657-31.5.

[Charley Foster]

That's right! I recall from law school, not the statute of limitations rule, but the acreage limit. As I recall it stemmed from a policy limiting the doctrine to the establishment of homesteads as opposed to, say, cattle grazing. (As I recall).

[Manawai]

May I ask a question or two? What if the action is for a pathway across a real property that is larger than 5 acres? The access or pathway would be smaller than 5 acres in size. Is a lot large than 5 acres protected against that under those statutes? It wouldn't be a depriving of part of the owner's interest per se, but a modification to it prohibiting the owner's right to exclude others.

[rht]

Manawai, I'm sorry, I don't know the answer offhand to your interesting question. On one hand, the easement is less than five acres in your hypothetical so the size limitation may not be applicable, yet on the other, the burdened land is more than five acres. I've never done any research on why the 1978 Con Con added article XVI, section 12 to the Constitution, and how it would apply to situations like the one you pose.