A Bad Brush With a Little-Known Law

"When the brutal truth sank in and I realized that we'd come all that way only to be told to get off our own land . . . I gave to violent
tears and Lee held me in shaking arms."

by Linda Hansen

We stood there dazed and bewildered, slowly realizing that our dream had died . . . or rather, had been killed by a stranger's hand. Adverse possession! We'd never heard the term before. But it meant that someone could call the sheriff and have the deputy who stood before us now order us off our own bought-and-paid-for property.

HINDSIGHT

Looking back, I'm still amazed at how much trouble could start with just a little ad offering land for sale. When I saw it—in an issue of MOTHER—I was excited, because my husband Lee and I had spent the past decade working to earn the money and learn the skills necessary to fulfill our dream: living a self-sufficient life on a homestead "somewhere in Oregon". That's where my grandparents had settled and farmed . . . where my mother was raised . . . and where my brothers and sisters and I had spent many idyllic childhood vacations.

So we called the realty company listed in the ad and learned that there were parcels of 40, 60, and 120 acres available, scattered all over southeastern Oregon. The prices were within our range, and the terms sounded good . . . so we requested property maps and descriptions, and waited for them eagerly.

A week later, a big, brown envelope ar rived at our home in the Bay Area of California . . . and we all but shredded the container in our haste to get at its contents. My husband grabbed the descriptions while I snatched the maps from under the quick fingers of my two daughters, Lorelei and Edena, and we sat down to study what we hoped would lead us to our future homeplace.

At first, we were disappointed. Most of the offerings seemed to be flat land filled with sagebrush . . . not the kind of country we'd dreamed of. However, we did come across one package that looked promising: 60 acres near Burns, Oregon. Much of the property overlooked a valley from a high, southwest-facing cliff ... but the real clincher was the fact that the parcel also contained 15 acres of rich bottomland beneath that promontory. And better still, a year-round creek—headed by a small dam and a three-mile-long reservoir, just a mile away—flowed through a corner of that section. So we knew the site would provide us with plenty of water for our livestock.

In short, we figured we'd found our dream spot . . and when we traveled to Oregon a month later to inspect the property, our hopes were confirmed. We loved the place, and bought it!

THE BIG MOVE

The following year, we returned to our "estate" to survey the property. The adjoining land was (and still is) owned by a widow and her son, and we met him one day while out measuring our acreage. He seemed surprised that we were there, but when we explained that we owned the land—and showed him the papers to prove it—he wished us luck, and drove away.

Later that week—just before we left—we visited our neighbor and gave him our address, saying that we'd appreciate his getting in touch if any problems cropped up. He promised he would, and we headed back to California to pack up our belongings.

It took us a month of hard work to get all our gear together, but we finally managed to pack the whole mess into our old '64 van. We loaded our livestock—goats, two gilt pigs, and a small horse—into the bed box that we'd installed in our new Dodge pickup, and (after getting the necessary vet inspections and permits required for transporting animals across the state line) we directed our convoy toward Oregon and a new life.

We arrived 36 road-hours later (we'd planned on just 12) . . . weary, bleary-eyed, and minus the van, which we'd left—blown engine and all—at a gas station just west of the Sierras. Exhausted as we were, I couldn't help but laugh when my daughters and I unloaded the animals to take them to the creek for a drink: Our herd virtually exploded from the bed, pigs squealing, goats running to stretch their legs, and the horse backing away and almost sitting down in disbelief at the surrounding chaos. Lorelei, Edena, and I ended up in the creek in a mad rush of thirsty animals . . . and for a few wonderful, happy moments—while our pigs buried themselves up to their eyeballs in soft mud—we splashed playfully, awash in newfound freedom.

Then something made me look over toward the truck, and I saw Lee gesturing for me to come. Then he pointed down the road. As I started walking toward him, feeling instinctively uneasy (I couldn't quite make out what he was saying), I spotted the object of his concern: a sheriff's Jeep bearing down upon us in a cloud of dust.

DISASTER

I ran quickly to Lee's side, and—with puzzled looks—we met the young deputy. He asked our names and, when we replied, handed us a sheaf of official-looking papers. He told us that we were trespassing and would have to remove ourselves from the premises!

Shocked (to say the least), we asked the officer for an explanation. He pointed to the papers and—looking a bit uncomfortable—said they were a summons to a hearing to establish a claim of adverse possession by the widow and her son on our 15 acres of bottomland. And he added that, in Oregon, any disputed real estate is considered the property of the claimant until the matter is settled.

When the brutal truth sank in and I realized that we'd come all that way only to be told to get off our own land 20 minutes after we'd arrived, I gave way to violent tears and Lee held me in shaking arms. We cried together in shock and grief, and—as we wept—the deputy quietly left.

"The witch!" I shouted in rage and frustration. "If there was a problem, why didn't she call us or mail the papers? Why did she wait until we'd committed everything we had to the move here?"

Believe it or not, we still don't know the answer to that question.

RETREAT

Suddenly, we found ourselves in a terrible situation. We'd originally planned for Lee to return to the Bay Area to work (a friend was due to pick him up that night) while the girls and I would set up a camp on our land and look for a home to rent temporarily in nearby Burns. But now, of course, all that had changed. And worse yet, we didn't even have enough money to finance a trip back to the Bay Area . . . Lee would have to return as planned and work for at least two weeks to get the necessary cash. In the meantime, my daughters and I would be forced to camp up on our high ground (at least that much of our property wasn't under dispute).

Since there wasn't any water on the higher part of the acreage, I'd have to haul enough from the reservoir for ourselves and our animals. Even that, though, wouldn't be enough for our filly . . . I knew she'd suffer terribly without constant water and good grass. So with tears rolling down my face, I unhobbled her and turned her loose. I left her there on the disputed piece of bottomland—along with our strength, hopes, dreams, and pride—and drove away without looking back.

Lorelei, Edena, and I will never forget the two long weeks we spent on that windswept cliff waiting for our going-home money to arrive. What I remember most—besides the heat, the trips to the lake for water, and the haunting beauty of the place—is sitting there on the cliff, watching the widow's son and his men hay the land below us ( our land). Lee's earnings eventually came in the mail, and we headed back to California, stopping only once—just across the state line—to sell our remaining livestock.

AN UPDATE

Two years have passed since I drove away from our dreams. We finally won our fight for the land (the widow and her son never did have a strong claim), but it took a whole year in court to do so. By the time the case was closed, we decided to sell the acreage back to the realty company for what we had in it . . . and they, in turn, sold it to the widow.

We learned from our experience, though . . . and used our knowledge—along with the money we'd invested in the Burns property—to buy a fine, timbered 80-acre parcel ( free of any adverse possession claims!) near Klamath Falls, Oregon. We haven't moved there yet, but we will soon . . . and that is where we'll make our final stand for the free life.

EDITOR'S NOTE: For an explanation of what the termadverse possession means—and of how you can best avoid such a challenge to your property ownership—please read the accompanying sidebar.

Adverse Possession: Squatters' Rights

If you own or are about to buy land, keep Linda Hansen's experiences—as related above—in mind. Under certain conditions the title to all or a portion of your land can be challenged and lost if some other party simply uses the property—before or after you purchase it—for a specific length of time established by state law. This is called adverse possession . . . commonly referred to by lay people as squatters' rights.

The concept was originally devised in medieval England to encourage the cultivation of land (and to help fill the kingdom's coffers, since more taxes could be collected on property that was occupied or otherwise developed). The intent of the law, therefore—to assure that landowners make reasonably productive use of their property—was (and, debatably, still is) more or less sensible. But it may also present pitfalls to the unwary.

In fact, in some cases you can be subject to a claim of adverse possession even though you've had a title search conducted and have purchased title insurance . . . a fact that makes it all the more important to understand the circumstances under which such a situation can evolve.

Here's what Les Scher has to say about the subject in his excellent book, Finding and Buying Your Place in the Country (Macmillan, 1974, $11.95):

For a person to take your title away from you, his use of your land must be [1] hostile, [2] actual, [3] notorious, [4] exclusive, [5] continuous, and [6] under a claim of title for [7] a specified period of time. Each of these elements must be met by the person, or "squatter, " who seeks to adversely possess your land.

[1] The possessor must use your land without your permission and must deny the fact that you are the true owner. Thus, if you give the person permission to, or specific orders not to, use the land, he can never gain 'title by adverse possession. His use must be "hostile" to you.

[2] The person must be making "actual" use of your land. He must be living or working on the land in some fashion. Some activities that have led to adverse possession of portions of land in the past include clearing brush, cutting trees, planting crops, putting in ditches, erecting a building, fencing off a section of the land, and living on the land.

[3] The user must be "notorious" in the manner in which he is on the land. He cannot sneak around the owner's property in such a manner that he could not be discovered and his activities must be visible to the owner if he were to examine his land.

[4]"Exclusive" possession means that the user must be on the land alone. If he is there with the owner or against the owner's specific orders, he cannot get title to the land.

[5] Use of the land must be "continuous" from the beginning of the prescribed time period to the end, although seasonal use for the prescribed number of years is generally permissible.

[6] The possessor must claim that he owns the land, even if he is wrong. His actions will speak for themselves in this regard. If he is acting as if he believes he owns the land, he is taking the property under a "claim of title. " If he ever admits that he knows he does not actually own the land, he cannot claim adverse possession.

[7] The time limit for acquiring adverse possession is called the "statute of limitations." All of the above elements must occur for a minimum length of time before adverse possession "ripens" into title. The minimum period varies among the states, from five years in California to twenty-one years in Pennsylvania. It runs from the time the possessor begins to use the property and continues running even if the property is sold by the actual owner.

ACQUIRING THE LAND

The most common instance of acquiring land by adverse possession occurs when a neighbor unknowingly puts up a fence that encloses a portion of an adjoining landowner's property. If he meets all the above requirements and has his fence up for the prescribed period of time, when he discovers that he has fenced in the neighboring land he can go to court and get a court order, or declaratory judgment, stating that he now owns the land he has enclosed. Another common situation that leads to adverse possession is when a part of a building, a section of an orchard, or other improvement encroaches on a neighbor's land and this "mistake" is not discovered before the prescribed time period has elapsed.

The willingness of the courts to award title by adverse possession varies among the states. For example, some states require that the possessor have a document, such as a faulty deed, that appears to give good title but actually does not. Other states require that taxes be paid for the prescribed period by the user in order for him to gain legal possession.

It's important to remember , too, that since a standard title search ordinarily reviews only matters of public record—such as deed transfers—it's not likely to reveal whether someone has been, or is, using the land as an adverse possessor.

Furthermore, title insurance policies—which can differ considerably from company to company—vary in regard to the protection they provide against claims of adverse possession. Some specifically except claims that are not a matter of public record but that could be ascertained by inspecting the land and/or making personal inquiries. Others exclude only claims of adverse possession that are known by the buyer at the time of purchase . . . while still others (which usually require a legal survey) provide more or less full protection.

It's generally agreed that getting a legal survey of the property you're considering is one of the best ways to avoid a claim of adverse possession. And title insurance is also strongly recommended . . . but do be sure to read the sections in the policy that list exceptions to coverage, and make sure you understand their implications fully. In addition, most attorneys advise that you get a warranty deed for any piece of real estate: Such a deed guarantees that (among other things) the seller will defend any claim against the title by another party.

And finally, you might also want to remember that even though the claim of adverse possession made against the Hansen family didn't hold up in court, it nonetheless created substantial problems for them . . . and resulted in their eventually selling the land.

If you're considering buying property, a wise first step would be to inspect the parcel yourself for signs of use by others. It's also a good idea to pay a visit to your prospective neighbors to get a feeling for where they consider the property lines to be. Any indication that anyone has been using (or might simply be inclined to contest your right to buy) the land in question just might be sufficient reason to think about shopping for real estate someplace else.