Tuesday, March 25, 2014

The Worst Adverse Possession Advice on the Internet


It's no secret that a lot of people try to solve their legal problems with (free) Google searches rather than with (expensive) attorneys.  Sometimes this works fine, but sometimes the internet makes mistakes.  For example, in the property arena, laymen often turn to Google to figure out how to avoid the adverse possession of their land.  The men and women who respond to these inquiries often get the law wrong or fail to understand the diversity of state rules.  Most commonly, the experts state that a landowner can prevent adverse possession by sending a certified letter that grants the trespassers' permission to stay on the land for a limited time.  The thinking behind this advice is that such a letter will defeat any claim that the trespassers' possession is hostile (one of the standard requirements for adverse possession).

Benny Kass who writes a real estate column for the Chicago Tribune (and who I generally really like) provides a recent example of this advice:

You have asked what to do to protect yourself. First, perhaps your neighbors would like to buy that plot of land. If not, I would send them a nice letter telling them that you are aware their property is encroaching on yours, but that you are giving them permission to use it. Such permission will cancel any claim of hostility. If you want to keep peace with your neighbors, however, I would first invite them over for a drink and explain that you will send them a letter about the property.

Other examples of this advice are here and here.

The problem is that this just isn't the law in a lot of places.  Sending a letter, without more, doesn't stop the statute of limitations from running.  The Court of Appeals of Kansas does the heavy lifting for me:

Although no other Kansas case directly addresses the issue, other states have examined the effect of letters on the statute of limitations for adverse possession. In one Connecticut case, Woycik v. Woycik, 13 Conn.App. 518, 537 A.2d 541 (1988), the true owners' attorney sent a demand letter to the adverse possessors and requested that a metal shed be removed from the disputed property. The appellate court there equated a demand letter with oral notice, especially given that the act of sending a letter did not allow the true owner to interrupt the adverse possessors' control of the land. 13 Conn.App. at 525–26. Similarly, in Oklahoma, the trustee of the trust that owned the disputed land wrote a letter to the adverse possessors and assured them “that he ‘intend[ed] to preserve his interest in the property and [would] vigorously defend’ “ against suits related to the land. Flagg v. Faudree, 269 P.3d 45, 50 (Okla.Civ.App.2011). Aside from the letter, however, the trustee never acted to oust the adverse possessors. The Oklahoma Court of Civil Appeals found that “a letter notifying the occupant that title is held by someone else is insufficient to interrupt adverse possession.” 269 P.3d at 50. 

(Yan Wang v. Reece, 2013 WL 6726148)  The Kansas court goes on to agree that "demand letters alone are insufficient to toll the statute of limitations."  Lawyers 1, Internet 0.


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