Trespassers have rights

[jlmiracle 7]

Greenlee: Trespassers have rights
By Bob Greenlee
Sunday, November 4, 2007

Most of us would like to believe that when we own property and pay taxes on it, a reasonable assumption is that no one else can claim it as theirs. Unless you live in a "progressive" community like Boulder, where common sense is occasionally as rare as a conservative's view of private property rights.

Twenty-three years ago, Don and Susie Kirlin purchased two undeveloped lots in Boulder's Shanahan Ridge. They were considering whether to build a home on their property or sell one or both lots sometime later. Last month a portion of their property was taken away by District Court Judge James C. Klein and given to neighbors under the legal doctrine called "adverse possession." If you've never heard this term before, it's likely you're not a clever lawyer who knows how to manipulate "the law" for personal gain at someone else's expense.

The home adjacent to the Kirlin's is owned by Edith Stevens and Richard McLean. They apparently planted so extensively on their property that easy access to their back deck and yard was difficult. Somehow the two decided they would use their neighbors' property and created what they and Judge Klein call "Edie's Path." In addition to "Edie's Path" Richard apparently created his own access across his neighbor's property — also without permission. "Dick's Path" allowed him to move a lawnmower from his garage to the back yard. Court testimony indicates McLean and Stevens also held a number of summer events on their neighbors' property and moved a wood pile on it.

McLean testified that: "No one interfered with (their) use of the disputed property" and goes on to say that neither he nor Stevens asked for permission to use the property and that they both knew the property was some else's. In addition they admit using the property "openly, continuously and notoriously for 25 years." They simply admit to trespassing on property that wasn't theirs and on which they had no legal right to claim as theirs. Seems pretty clear-cut. Unless, of course, you know the legal tricks of claiming "adverse possession." Stevens and McLean are both lawyers, and McLean is a former judge and once served as Boulder's elected representative on the Regional Transportation District's board of directors.

According to court documents, the concept of adverse possession "is a method of acquiring title to an interest in land without the consent and typically over the objection of the true owner." Interesting concept. But if you ever find yourself in a court of law, you'll soon discover that up can suddenly become down, black becomes white, and common sense disappears as quickly as walking through a metal detector on the way to never-never-land.

The case clearly established that Stevens and McLean trespassed on their neighbor's property over a long-enough period and were therefore legally entitled to a portion of it. Free. Without paying rent or taxes. What a deal!

According to the judge, an initial presumption of ownership is in favor of the "record title holder." Just to sway things against rightful property owners, however, court documents indicate that after a period of time, anyone can claim land as theirs simply by forming "a personal attachment that is stronger that the true owner's attachment."

Really? In addition, when another person's use of a property goes unchallenged over a long period of time, the "use it or lose it" doctrine prevails. According to Judge Klein's final order, title must now be transferred from the lawful taxpaying owners to their trespassing neighbors because of their "strong attachment" to it.

If any of this makes a lot of sense to you, it's obvious you're far more "progressive" than I'll ever hope to be.

Bob Greenlee can be reached at: [email protected].
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How does this happen? I understand and disagree with eminent domain, but this seems worse.

judy

Be kinder than necessary because everyone you meet is fighting some kind of battle.

[lawrocket 3]

Adverse possession has been around for eons. Here in Cali, you need to show 5 years of open and notorious use or possession without consent of the owner.

I acually have a case right now dealing with it. My client gets named as a defendant in the seeking of a prescriptive easement. The plaintiff has been using this private road since 1939! Get this - we're on the same side. My client has been using it since 1966!

The owners of the private road want to ban my client and the plaintiff from using the road, when it has been the primary entrance and exit to their properties. You don't just sit on your rights. Someone on your property that you dont' want - kick them out!

Trespassers don't have rights. Trespassers can develop rights is the titleholder doesn't protect his or her rights, though.

My wife is hotter than your wife.

[jlmiracle 7]

I think they should put some pigs, goats and chickens on the "remaining" land and hire a toothless none-bathing redneck to live in a trailer to take care of the animials.

Judy

Be kinder than necessary because everyone you meet is fighting some kind of battle.

[pirana 0]

That's good. Or maybe invite all their friends to hunt the property, with very large loud guns.

But seriously, I wonder what the owner would have had to do to prevent this from happening? Cut the grass along the property line once per year? Ask them just once, and put it on reecord, to stay off?

It does seem very wrong. But that is what happens sometimes when codified law rules the day. Legal code does not establish what is right or wrong, and often has nothing to do with what normal people consider ethical or moral. It establishes what is law; what is available to those that know how to use it. Unfortunately, law sometimes trumps common sense, or what the vast majority see as right and wrong, moral and ethical.

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[nerdgirl 0]

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The owners of the private road want to ban my client and the plaintiff from using the road, when it has been the primary entrance and exit to their properties.

That sounds simlar to was the situation of the rural private road where I grew up (midwest). 50 acres of land were originally (pre-1930s) purchased by two brothers. As they grew older, they subdivided the land into 1 & 2-acre plots, but the access road remained technically the property of one of the brothers. It was a private road; one of the brothers & his wife paid the taxes. The township also didn't plow or grade it.

While laws obviously vary from state to state, in the case you describe, are there rights of ingress & egress?

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[ryoder 1,387]

Wikipedia article here: http://en.wikipedia.org/wiki/Adverse_possession

Note to self: Remember to go out and chase those damn kids off my lawn at least once per day.

"There are only three things of value: younger women, faster airplanes, and bigger crocodiles" - Arthur Jones.

[Esquilax 0]

Quote

Wikipedia article here: http://en.wikipedia.org/wiki/Adverse_possession

Note to self: Remember to go out and chase those damn kids off my lawn at least once per day.

Solution: http://en.wikipedia.org/wiki/M18A1_Claymore_Antipersonnel_Mine

Ostriches and rheas are the only birds that urinate and defecate separately. They read Parachutist while doing #2.

[BillyVance 34]

Is that the same Don Kirlin who ran WFFC for many years?

"Mediocre people don't like high achievers, and high achievers don't like mediocre people." - SIX TIME National Champion coach Nick Saban

[jlmiracle 7]

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Is that the same Don Kirlin who ran WFFC for many years?

I believe so.

judy

Be kinder than necessary because everyone you meet is fighting some kind of battle.

[Esquilax 0]

I adversely possessed my Sister's best friend this past summer.

Ostriches and rheas are the only birds that urinate and defecate separately. They read Parachutist while doing #2.

[Andrewwhyte 1]

When I was growing up two blocks of the main street were owned by the same land owner. Behind the businesses was a street that was maintained by the town. One day a year there were road blocks set up and PRIVATE PROPERTY- NO THOROUGHFARE signs in place. The land belonged to the land owner and he maintained control of it by denying passage one day a year.

[BillyVance 34]

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Is that the same Don Kirlin who ran WFFC for many years?

I believe so.

judy

That fucking sucks... I guess it just goes to show that if you don't want to lose your property in the future, then maintain it or put up "no trespassers allowed" signs!

I have three lots, one of which is mostly woods. I know that someone's bought some property next to it that's part of the same wooded stretch, but haven't started building anything yet. Maybe when they do, I'll spring for a surveyor to mark my property lines so I'll know exactly what's mine.

"Mediocre people don't like high achievers, and high achievers don't like mediocre people." - SIX TIME National Champion coach Nick Saban

[warpedskydiver 0]

That was a classic misapplication of adverse possession, I and many other Land Surveyors would testify that adverse possession had not occurred.

This was a developed city lot, they had not built a house or similar structure on it.

You cannot stand by and watch someone build on your property and complain later, but if you find that that have built on your property without your knowledge then you can make them pay, or just take said real improvements.

The Kirlins should appeal, and hire a well known and highly respected land surveyor, he will rebutt any assertions the tresspassers and their lawyer makes.

When in court the plaintiffs lawyers asks what the surveyors job is and a brief description, then askas the tresspassers and their lawyers what there expertise is, their testimony will be treated just like the worthless and uneducated opinion it is.

Lawyers are not land surveyors, they can argue what they think the law means, but in the end the surveyor is the expert and is recognized as such by the courts, this has precedence in all 50 states.

The only way a lawyer can successfully argue against a surveyor and possibly prevail, is if the lawyer is himself a surveyor.

I have witnessed this many times in court.

The firms I worked for were two of the most highly regarded in the state, and in the country.

One of our chief surveyors was licensed in all 50 states, and PR.

Another surveyor we had was the great great grandson of John Cabot Smith.

His grandfather was resposible for the ante fire layout of chicago, and the post fire reconstruction of said properties.

Chicago is the single hardest surveying nightmare that ever occurred, and smith thankfully was co author of Greely's atlas, a document produced ante fire by Greely Howard Norlin and Smith.

There are only two copies in existance, one belongs to the chicago historical society, and the other is in the vault at National Survey Service.

Chicago had sued to get the copy from the Historical society, and lost that case, they then filed suit to take the copy that belonged to National, they were rejected by the court as not having merit.

I like one a judege once told a high powered lawyer

"Sir you are not a Land Surveyor, so don't try and pretend, now sit down and be quiet, or I shall find you in contempt"

Hey but what would I know as I was merely the chief research anaylist.

One of you people should contact the Kirlins and let them know they have been screwed illegally by an ignorant judge.

APPEAL!

Furthermore the Kirlins should immediatly erect a high chain link fence and post no tresspassing signs.

There is nothing that can be done to stop them.

Have a surveryor standing by the day the fence goes up.

[lawrocket 3]

A bit fo free legal advice to all California property owners who have people using their property who don't want to have an easement.

Cut and paste this statement:

"The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner: Section 813, Civil Code."

Go to your recorder's office and record it. Then send a copy of it via registered mail to your neighbors or anyone whom you know uses your property. They cannoy establish a prescriptive easement and eliminate any problems associated with a prescriptive easement, which is what it sounds like these folks got.

NOTE: I have little doubt that all they received was an easment entitling them to use the paths, not to transfer their whole lot to the neighbors.

My wife is hotter than your wife.

[warpedskydiver 0]

Exactly and that can and will be repealed.

[lawrocket 3]

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Exactly and that can and will be repealed.

Actually, I'd put this as a pretty safe section that'll be around for a while.

My wife is hotter than your wife.

[warpedskydiver 0]

Real improvents would have to been done.

Fences and or gravel paths are not construed as real improvements.

[steve1 5]

I'm no expert on this, but I think this may vary a lot depending upon which state you live in. I've got a 7 acre piece of land. The fence along one side is probably in the wrong place. I figure it could be off ten feet or more. I have the original survey, when I bought the place. I did consult this with a lawyer here in Montana. She said that we were the ones who had paid taxes on this land, even though the neighbors have been using it for the past 50 years, so legally we would win in court if it ever went that far. If there was a road, this could complicate things, but since this is all bare land, there shouldn't be any problem in moving this fence. I contacted a surveyor a while back. I just need to have him survey it. Does this sound right to you? I hope this lawyer was telling us the truth.

[Nightingale 0]

It varies a lot depending on which state you live in. You need to consult a lawyer familiar with your state's adverse possession laws.

[warpedskydiver 0]

The fence is somewhat irrelavant, it may give a surveyor some clue as to what happened but in the end it is just a fence.

Is a horse Paddock something the delineates property lines?

A dog Kennel?

The property irons actually do not mean all that much, the junior senior rights, historical evidence from the time the land was homesteaded, and measurements taken and compared to what is found is what matters.

A property iron can be in the wrong place and all it becomes is a place to describe where the corner lies.

For instance the FIP (found Iron Pipe) can be 0.20' North and 1.53' East of the corner, the corner has not moved, the pipe has either been errantly placed or moved by others.


What is also taken into account is the equipment and methods in use at the time the land was initially divided.

I hope that the attorneys who read this will remember what I say so they will not fail themselves and their clients if the needs arises for them to show some knowledge of what surveyors do, and why they are telling you something that you may or may not like, even if you are the one paying them.

[Esquilax 0]

Is it possible to adversely possess a housecat?

Ostriches and rheas are the only birds that urinate and defecate separately. They read Parachutist while doing #2.

[warpedskydiver 0]

You can get cat scratch fever like that.

Meats and bounds?

[kallend 1,625]

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For instance the FIP (found Iron Pipe) can be 0.20' North and 1.53' East of the corner, the corner has not moved, the pipe has either been errantly placed or moved by others.

.

Property most certainly CAN move in California!

...

The only sure way to survive a canopy collision is not to have one.

[Andy9o8 0]

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Meats and bounds?

Hahahaha, very good.

[Andy9o8 0]

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She said that we were the ones who had paid taxes on this land, even though the neighbors have been using it for the past 50 years, so legally we would win in court if it ever went that far.

Nightingale's right - it varies a lot state by state. But what jumps out at me is the "neighbors have been using it for the past 50 years" remark. That definitely gets my attention. Just how have they been "using it" - actively, passively, etc.? That might be a crucial fact if it's tried in court; but in the end that depends on the standard used by Montana statutes and caselaw.