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A similar case was upheld in Boulder, Colorado this year. A neighbor started to use a part of land they didn't actually own. The adjacent land owner was doing a survey of their land to possibly sell their property and noticed the unwanted intrusion. Due to the time lag, when they protested the neighbor used the adverse possesion rule and won in court. Moral of the story, keep your land survey current and watch for any signs of squatters or fences moving or intrusions. Kani-lehua's new sign should be NO TRESPASSING, SQUATING WILL BE PROSECUTED, IF YOU REMOVE THIS SIGN YOU'LL REGRET IT ;/
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quote:
Originally posted by Green
Here's one for everyone! How about squatters telling other squatters that they own the land and then charging rent to the new squatters who really think they are tenants.
There were scams like this on Craigslist last year and there are scammers who pretend to be landlord and rent out foreclosed properties now!
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I think in modern times this law is terribly wrong.
It basically legalized stealing.Total disrespect for private property.
No threatening sighs will be effective when there's no law behind them.
Those scammers just proved it.
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This is happening all over Norther CA in forclosed properties. A person breaks in and changes locks swiftly, then puts an ad in the paper and Craigs list "for rent" they collect first and last months rent and security and before the bank realizes it tenants move in.
The scammer walks away with several thousand dollars (usually cash) and the bank has to hire the sheriff to evict the poor dupes who rented the place. Yet another problem related to the unregulated banking!
quote:
Originally posted by Green
Here's one for everyone! How about squatters telling other squatters that they own the land and then charging rent to the new squatters who really think they are tenants. They even built cabins for "their tenants", i have had to deal with this situation. The perps got away with it and a nice income for themselves for several months.
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quote:
Originally posted by StillHope
I think in modern times this law is terribly wrong.
The Law of Adverse Possession has nothing to do with illegal squatters and scams. There is no such thing as "Squatter's Rights" in law.
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From way back in the fuzzies of my brain, & from the midwest.... I also thought that part of the adverse possession 'open & notorious' was that all fees (taxes & such) were paid by the the person that is trying to take ownership, not by the landowner of record for the prescribed time....
Again if my memory on that is true... & the landowner of record is still paying the taxes & fees, then no adverse possession claim can be made... but this is digging into the dusty, unused files of an overworked brain, and could be just a figment....
Do any of our legal experts have a more informed read on this?
I'm not a legal expert or an attorney, but I've taken enough law classes to be able to read case law. A couple years ago I had to research this because my lame neighbor was claiming a prescriptive easement, for which the requirements are almost exactly the same in Hawai'i, except the title doesn't pass.
Anyway, I read a whole lot of Hawai'i cases on adverse possession and for other states, so I'll take a stab from my fuzzy memory.
Glen has beautifully the legal philosophy behind the laws, and between Bob Orts and John Rabi I think they covered all the bases I encountered.
I believe that paying taxes is simply a way of partially meeting the element of "color of right." It is a way of demonstrating that you believe you legally own it, although I think in Hawai'i you would need more. You would need a reason that you think it's yours, whether by purchase, gift, or inheritance.
In Hawai'i, land ownership is somewhat different than the mainland in that the king originally made all the land grants. At the time of the grants, the Hawaiian people had never owned fee simple before and did not all get the concept.
Families were given their kuleana but I believe they had to claim it. Oftentimes the patriarch would die intestate and there would be different claims to the title, disputes between siblings, disputes between widows and stepchildren, and so forth.
Sometimes the owner would both bequeath the land and sell it. Lots of confusion as to who had the rights, especially if no one settled the dispute but let it perpetuate for generations.
Then there were cane companies that tried to steal land from small landowners. They would go to someone who wasn't farming that land and ask to plant on it, and the owner would say, sure, I'm not using it, and with time the cane companies had been farming it for years and put claim on it.
Perhaps for these reasons and others, Hawai'i does not favor adverse possession, the taking of a person's land, meaning that a claimant has a strict burden to prove all the elements.
Not only do you need 20 years of occupation, but the "color of right" means you must prove that you have some reason to believe the land was yours. Maybe a bad survey in the case of adjoining land owners, or a confusion over inheritance, or an unrecorded interest, or a deed that seemed legit but wasn't.
Then there is the "hostile" requirement: any situation where you give permission to the person to use the land defeats the running of the twenty year requirement. In the case of a parent and offspring, permission can be implied. (In my case, my neighbor's mother-in-law who owned the property before us had given her permission)
"open and notorious" means, I believe, that they are open about the occupation, coming and going openly, perhaps even improving the land. There has to be some way in which, if you are paying attention, you can discover the usage.
Squatters who squat long enough may be open and notorious, and hostile, but they have no way to meet "color of right."
Now if someone had "sold" them the land fraudulently and they didn't do a title search, and they moved onto it and occupied it, thinking it was theirs, for twenty years, putting improvements on it and paying the taxes, and you did nothing about it -- well, they might just have a case and you would probably deserve to lose it for ignoring your land all that time.
However, like John Rabi said, they still don't automatically have title. They have to bring a Quiet Title action, and they cannot for parcels recorded under the Land Court system or of 5 acres or more.
Squatters, no, but they sure are trespassing, and I would report it.
Theodore Jay wrote
quote:
A neighbor started to use a part of land they didn't actually own. The adjacent land owner was doing a survey of their land to possibly sell their property and noticed the unwanted intrusion. Due to the time lag, when they protested the neighbor used the adverse possesion rule and won in court.
I actually had a situation like this where I would potentially have had the claim.
Two parcels of adjacent land, one had a house and improvements on it since the 60's, and the other was vacant. I can only speculate that the survey was inaccurate, because the owners who built the house put the driveway right down the center line, so that half of it was on the other property.
They even had a car repair business where they had those mechanic's wells poured with concrete so you can get under the vehicle, on the other property, so they weren't just using it.
Almost 40 years later, the next door owner goes to sell his land, has a survey done, and I can only speculate he discovered the encroachment and went to cure it by recording an easement over half width of the driveway in favor of the other property. The easement was dated 1998, and recorded a month before the title transferred, so that tells a story.
I bought the property with the existing house, and the seller's agent nor the sellers explained the driveway easement when I was shown it. I only learned of it when I got the Title Report, and frankly, I didn't see the implications, and neither did my agent. If I had seen what was coming, I would have canceled based on the title report. Lesson learned, check that prelim title report, and any easements, make sure you know where they are.
So then the neighbors showed up just after I closed, and decided to build, and because of where the property line was, and because an easement counts for the setback requirement, they built just a few feet (literally) from the edge of the driveway, WAY too close to me. And I had no land along my driveway to put a fence or screening. And they didn't respect the easement, and constantly parked in it and blocked our access.
Not only did they not respect the easement, but they didn't understand it, and tried to claim my driveway was theirs to use, when only half of it was - and their half wasn't wide enough for a vehicle because it was all only ten feet wide. They should have put in their own driveway but it was easier to use mine.
So I seriously considered whether I had rights to that strip of driveway under adverse possession, as it had been used openly and without "permission" for over 40 years, and I am sure the people who poured it thought it was theirs. I mean who goes to the expense of pouring half the driveway on the neighbor's land and giving it away. And even the house setbacks were done to the edge of the driveway, and the house was permitted and inspected and passed. It was obviously a confusion about the property line.
Ultimately I just decided I couldn't live next to those neighbors and sold the property, which was a big loss for me because we worked our hearts out fixing it up and the neighbors took away all our privacy.
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no way does our situation come close to kathyh's. we will file a report even though it's now been several days since the discovery.
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kani-lehua, my reply was indeed quite off topic to your original question, and was more in response to the questions that came up about adverse possession situations.
Hope your squatters go and don't come back!
One thing you might do, if you feel motivated, is put up a sign saying that trespassing will be prosecuted to the full extent of the law. And maybe something to indicate the property is being monitored regularly.
I'm sure these types pick lots where it appears no one is visiting regularly or paying attention.
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