"The 2Point Way" - Is Judicial Notice Required to Perfect Title by Adverse Possession?"
In adverse possession dispute, the question often arises: “…at what point in the process does title pass from the record owner to the claimant? Does title vest at the end of the time period set by the applicable statute of limitations, or only after a court has ruled on the specific dispute?” Given the frequency with which this issue is raised, it appears to be a contentious and mis-understood aspect of prescription.
In Pilkons v. Mendonca: 19 LCR 337 (2011), the Massachusetts court provides a cautionary tale to any professional who recommends destroying any neighboring structure that appears to encroach across the record property line.
In this instance, Mr. Pilkons filed suit in 2006 after his neighbors caused part of his driveway and the associated rock wall to be removed. Following the excavation of the driveway, Mendonca built a fence conforming to the record boundary line. The paved driveway had been in existence in substantially the same location since 1969, but Mendonca did not learn of the issue until a 2004 survey revealed the discrepancy.
Mr. Mendonca attempted (unsuccessfully) to convince the courts that his 2004 survey interrupted the continuity of the adverse claim. Even if this had been the controlling issue, the court observed that merely setting a nail in pavement is not considered sufficiently notorious to interrupt an adverse claim. Whatever the significance of this argument for other disputes, it was deemed irrelevant in this instance.
The court’s analysis relegates the previous discussion to the background because of a more significant flaw in Mendonca’s assertion. The court concluded that, at the time of the 2004 survey, title had already vested in the adverse claimant: “Thus, the clock for adverse possession was not interrupted in 2004. Even if the time period had stopped running in 2004, as urged by Defendants, Plaintiff still satisfies the twenty year requirement because Plaintiff and his predecessors-in-title had continuously used the Driveway Area since 1969. The adverse possession use had ripened in 1989.
Since this court has found that Plaintiff established title to the Driveway Area, it follows that Defendants trespassed on the Pilkons property when they excavated the Driveway Area, removed the wall, and erected a fence in 2006 without permission or right. “When one without right attempts to appropriate the property of another...a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done.”” This analysis clearly notes that fulfillment of all requirements for the required time period is sufficient to vest title in the adverse claimant. It also illustrates that adverse use does not have to be demonstrated for the time period immediately preceding the litigation.
A recent California decision affirms the principles described above. Marriage v. Keener: 26 Cal. App. 4th 186 (1994) emphasizes the strength of the title created by adverse possession. Ultimately, it is the responsibility of the record owners to file suit before the expiration of the statute of limitations if they feel that their rights are being violated. Judge Nicholson observes that the title obtained in this manner is sufficient to stand against any party. Citing Illinois case law with approval, he notes: “[W]hen fee is once acquired by a … five years' adverse possession it continues in the possessor till conveyed in the manner prescribed for the conveyance of titles acquired in other modes…” In a separate quote from a Missouri decision, the California court also emphasizes that the title obtained in this manner may not be lost merely by subsequent failure to assert rights openly. Once title is perfected, it may be lost only by those mechanisms of law that would strip property rights from an owner whose title was based on a deed.
Are there limits on when a claim may be proven?
Arguments by owners of record—as well as occasional instructions to juries from lower court judges—attempt to restrict the operation of the doctrine to the period of time immediately preceding litigation. However, numerous decisions make clear that a prescriptive claim may have been perfected many years in the past, provided that the common law requirements were met for the statutory period at some point in the history of the tract. All actions that occur on the disputed tract subsequent to the fulfillment of the requirements mandated by law must be considered in the context of the previous transfer of title.
The North Carolina decision Warmack v. Cooke: 71 N.C. App. 548 (1984) addresses two specific issues that clarify the significance of a court ruling on an adverse claim. In a unanimous opinion, Judge Hill wrote: “…defendant requested the trial judge to charge the jury that the proper period for consideration for a prescriptive right was twenty years next preceding the claim. The trial judge refused to so charge, and defendant excepted. He cites no authority for his position, and we have found none. A careful reading of the guidelines in Dickinson v. Pake, supra, and other related cases, finds no such requirement. We believe that title vests in the claimant upon twenty years of continuous and uninterrupted possession, all other requirements having been met, and the bringing of suit at any time thereafter simply gives record title to the property or interest in property acquired.” The court concludes that its role in this situation is to provide notice of the results of its inquiry. While it could be argued that the claimant did not have marketable title prior to the ruling, this in no way diminishes the high quality of the title as it existed prior to the ruling.
The benchmark decision on this issue in North Dakota is quite recent. Sauter v. Miller: 907 N.W.2d 370 (2018)applies this principle both to adverse possession and to acquiescence, which is linked to the 20-year limitation described in N.D.C.C. 28-01-04: Title by acquiescence and title by adverse possession occurs when the statutory period for possession has been satisfied.
Sommerlath v. Voss: 449 S.W.3d 390 (2014) is a recent Missouri decision that describes a fairly typical dispute between neighbors. Neither had any knowledge of the true location of the record line until a survey performed in 2010. Sommerlath had been using the disputed area since approximately 1980 in a state with a 10-year statute of limitations for claims of real property.
The final argument discussed by the court concerned statements made by Sommerlath in a 1992 administrative hearing regarding the location of the property line. The defendants argued that Sommerlath was estopped from benefiting from any actions prior to those statements. The court disagreed and observed that: “Once title to property vests in the adverse possessor, any conduct subsequent thereto is irrelevant to the adverse possession inquiry. …Once the ten-year period has run, the possessor is vested with title and the record owner is divested.
Respondent began adversely possessing the disputed area in 1979, when he moved in and began to maintain it. His adverse possession was complete in 1989, ten years later. At that point, he was vested with legal title, and the property to the south (then the Grogans', later the Appellants') was divested. Any representations that Respondent may have made during an administrative hearing in 1992, after he acquired legal title to the disputed area, are irrelevant.”
The examples above represent a small sample of similar rulings found in numerous jurisdictions. Research by the author demonstrates similar language and conclusions from the following jurisdictions: Alabama; Delaware; District of Columbia; Florida; Illinois; Indiana; Maine; Minnesota; Mississippi; New Jersey; Ohio; Rhode Island; U.S. Virgin Islands; Vermont; Washington; Wisconsin.
U.S Supreme Court Decisions
Several early U.S. Supreme Court rulings describe the mechanism of adverse possession and note the effects of subsequent actions on the land after the requirements have been fulfilled for the statutory period.
One of the most enlightening rulings on this issue is Davis v. Mills: 194 U.S. 451 (1904). In a unanimous decision, Justice Oliver Wendell Holmes notes that prescriptive easement doctrine vests a limited estate by operation of law upon the fulfillment of the common-law requirements. But does a statute of limitations for claims of real property merely prohibit later claims by the record owner, or does it also operate to vest title in the adverse claimant? Affirming relevant language from previous rulings, Mr. Holmes concludes: “Again, as to land the distinction amounts to nothing, because to deny all remedy, direct or indirect, within the State is practically to deny the right. ‘The lapse of time limited by such statutes not only bars the remedy, but it extinguishes the right, and vests a perfect title in the adverse holder.’”… “Property is protected because such protection answers a demand of human nature, and therefore takes the place of a fight. But that demand is not founded more certainly by creation or discovery than it is by the lapse of time, which gradually shapes the mind to expect and demand the continuance of what it actually and long has enjoyed, even if without right, and dissociates it from a like demand of even a right which long has been denied. … Constitutions are intended to preserve practical and substantial rights, not to maintain theories. It is pretty safe to assume that when the law may deprive a man of all the benefits of what once was his, it may deprive him of technical title as well. That it may do so is shown sufficiently by the cases which we have cited and many others.”
Campbell v. Holt: 115 US 620 (1885) is of particular interest for its discussion of the effect of legislative changes to the statute of limitations after a claim was perfected under the previously existing laws of the state.
Delving into the early history of prescription, Justice Miller recognizes this concept as the oldest known mode of title acquisition. He observes similarities between then-current English and American legal systems and concludes that: “…where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title — a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has been repeatedly asserted in this court. …It is the doctrine of the English courts, and has been often asserted in the highest courts of the States of the Union.”
Justice Miller’s discussion of the effects of legislative changes during the period of prescription also pinpoints the moment at which the adverse claimant is no longer a claimant, but an owner: “It may, therefore, very well be held that, in an action to recover real or personal property, where the question is as to the removal of the bar of the statute of limitations by a legislative act passed after the bar has become perfect, such act deprives the party of his property without due process of law. The reason is, that, by the law in existence before the repealing act, the property had become the defendant’s. Both the legal title and the real ownership had become vested in him, and to give the act the effect of transferring this title to plaintiff, would be to deprive him of his property without due process of law.”
While at least two minor exceptions—and several rogue decisions to the contrary—exist in isolated circumstances, the overall consensus on this issue is remarkably consistent.
Legitimate challenges remain when attempting to prove marketable title to the satisfaction of a title insurance company or bank. These corporations may require judicial recognition of the adverse claim before they will agree to issue a policy or a loan, but the transfer of title itself is not determined by private companies and does not require judicial notice.
The Pennsylvania court emphasizes the quality of title by adverse possession and concludes that title based on a perfected adverse claim can be considered marketable. In Medusa Portland Cement v. Lamantina: 353 Pa. 53 (1945), the court observes: It is a familiar principle of the law of real estate that a title depending on adverse possession may constitute not only a good but a marketable title which a purchaser will be compelled to accept.