Showing posts with label adverse possession. Show all posts
Showing posts with label adverse possession. Show all posts

Friday, October 30, 2020

Adverse Possession: Why It Makes More Sense Than You May Think

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As we wrap up the months of October, many images of the month come to mind—Fall, Halloween, pumpkin season, apple season and Columbus Day. Nearly two weeks ago, we all experienced the ever-evolving view of both Christopher Columbus and the celebration of his holiday. In contemplating my thoughts on Columbus’s role in American history and his appropriation of land, I couldn’t help but make a connection to the real estate concept of adverse possession

Adverse possession is the legal ability to take over the land of another person by openly and notoriously acting like you are the owner over a number of years. The ways that a person in adverse possession can demonstrate open and notorious occupation of land differ from locale to locale. Some examples of open and notorious possession have been constructing a fence, maintaining the lawn, receiving mail and, the most open and notorious of all, paying property taxes.

To most, the taking of land from a landowner seems to fly in the face of the American capitalistic sentiment. “Redistribution of wealth” has been a threatening concept in our country since the Declaration of Independence and is often seen as antithetical to the American Dream of making your own way through your own efforts. Seen in the light of resource management, urban planning and blight prevention, however, the mechanism for adverse possession does make sense.

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The motivation behind most zoning and urban planning decisions is effective, efficient land use. If land is properly categorized, zoned and used, the residents of an area of can all coexist with minimal interference and presumably live together more happily. Improper land use clearly interferes with coexistence. The factory that is emitting toxic waste will negatively affect a housing development next door and the adult entertainment establishment will clearly have some negative effects on the school that is located across the street. Such issues are apparent and can be solved through zoning laws and decisions. Neglect, however, is a form of misuse that cannot be effectively managed through the zoning code. Although local laws can require certain maintenance standards, a neglectful landowner will likely ignore the consequences of not complying with these laws just as readily as he or she ignores the property. Neglected property will eventually lead to much larger issues, as discussed in this prior post.

Adverse possession is the remedy for protracted property neglect. It rewards the person who maintains a property and punishes the neglectful property owner. It requires such a high level of investment from the maintainer and punishes such a high level of neglect by the property owner that it cannot
reasonably be labeled as an effect method of property redistribution. The property owner that ignores a property for 7 – 25 years is effectively creating a dangerous situation and is appropriately penalized for such neglect, as their actions have a direct effect on those living and working around the property.

Although the actions of Christopher Columbus and their consequences may be questioned, the necessity of a mechanism like adverse possession is clear. Extreme property neglect is harmful to a community and this old legal custom is rarely disputed. One of the measurements of a vital community, however, is how infrequently issues of adverse possession arise. 

This is my take on adverse possession. Please feel free to leave your comments below.

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