Disagreements involving retroactive effects of legislation are common in modern courtroom disputes. Parties involved in these cases often raise arguments relating to ex post facto laws, or the Takings Clause of the 5th Amendment of the U.S. Constitution. While some of these disputes may be of limited interest to land use professionals, arguments over local land development ordinances, zoning, or additional restrictions mandated by state or federal laws may be of more immediate concern to the surveyor. Legislative acts and regulatory changes relating to riparian rights, railroads, public utilities and adverse possession may be limited by the courts’ imperative to protect the stability of existing property rights, both public and private.
Court reluctance to apply legislation retroactively (or retrospectively) is rooted in several rationales and should not be equated exclusively with strictures against ex post facto laws found in the U.S. Constitution. Laws that purport to operate retroactively may be challenged on many fronts, depending on the subject matter of the law.
An early explanation of ex post facto laws is found in Dash v. Van Kleeck: 7 Johns. 477 (1811). Quoting Sir William Blackstone, the New York court concludes: “An ex post facto law is when, after an action (indifferent in itself) is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it.” This term generally is linked to criminal cases, while “retroactive legislation” is a broader concept that often appears in civil court disputes over real property.
Ancient & International Precedent
United States v. Schooner Peggy: 5 U.S. 103 (1801) is a benchmark U.S. Supreme Court decision that considers the pitfalls of retroactive laws. While this decision deals primarily with seizure of ships during hostilities with other nations, it also condemns uncompensated takings in private disputes: “It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties…” This case also recognizes limits of this principle in cases of national security, where the rights of individuals must be balanced with the welfare of the nation.
The United States is not alone in its general distaste for retroactive application of new laws. In Eastern Enterprises v. APFEL: 524 U.S. 498 (1998) the U.S. Supreme Court again considered adverse effects of retroactive applications in the United States—and in other nations. In addition to recognizing the repercussions of the ex post factoand Takings Clause violations, this ruling cites numerous sources—both modern and ancient—for its reluctance to apply legislation retroactively.
“Retroactivity is generally disfavored in the law…in accordance with “fundamental notions of justice” that have been recognized throughout history … “It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect…”” Justice O’Connor observes that similar strictures against retroactive laws are found in the legal systems of Canada, France, and Finland.
This case also reinforces the applicability of the Takings Clause in these situations: “The Takings Clause of the Fifth Amendment provides: “Nor shall private property be taken for public use, without just compensation.” The aim of the Clause is to prevent the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.””
O’Connor notes how often the Takings Clause is invoked when real property interests are in dispute. Common arguments relate to actual physical intrusion by the government onto private land, but others arise from regulations that seem to redistribute benefits and burdens between citizens for some public purpose. The tightrope walked by the courts is the balance between the government police powers and right to regulate—set against the rights of private parties to enjoy the benefits of their land. No specific formula can be applied equally to all disputes, lending additional complexity to any decision involving the Takings Clause. Read more about the Takings Clause and local zoning here.
Mineral Rights and School Lands
Retroactive laws may intrude in disputes over severed mineral rights and the associated easements or rights of entry. The Florida decision Trustees of Tufts College v. Triple R. Ranch: 275 So. 2d 521 (1973) includes detailed discussion of a 1970 statute—Section 704.05—that purported to extinguish record easements associated with mineral rights after 20 years of non-use.
In this instance, the court concluded that 704.05 should not be applied retroactively to mineral estates severed from the surface prior to enactment of the statute. Statutes are generally presumed to operate proactively unless the law clearly states otherwise; 704.05 did not include any language indicating a contrary intent. Citing sources including Lord Coke and prior Florida precedent, Judge Roberts observes: “A statute is not to be given a retrospective effect unless its terms show clearly that such an effect was intended.” … “The rule that statutes are not to be construed retrospectively unless such construction was plainly intended by the Legislature applies with peculiar force to those statutes the retrospective operation of which would impair or destroy vested rights.”
Recognizing mineral rights as a valuable interest in real property, the court concluded that the easement created for the express purpose of accessing the subterranean estate is a critical part of that value. The Declaration of Rights in the Florida Constitution states that: “…private property [may not] be taken without just compensation.” Prior Florida rulings confirm that easements are also protected by this provision. The court concluded that 704.05 could operate only on easements created after the law was in place.
The Iowa courts faced a similar problem (but with a very different outcome) in Independent School District of Des Moines v. Smith: 190 Iowa 929 (1921). The dispute was over three tracts purchased in fee simple for a public school circa 1867. Statutes enacted by the state in 1873 made land purchases for school purposes subject to a “reversion clause” that would cause the title to revert to the owner of the original tract from which it came if the subject tract was unused for school purposes for a 2-year period. However, the statute also required repayment of the purchase price plus the price of improvements to the school system.
To avoid the creation of an uncompensated taking, this statute made provision for payment to the school for the land and improvements that were transferred. The court concluded that the retrospective operation of this statute was legitimate.
Retroactive Application of Changed Limitations for Prescriptive Claims
One of the most common and consistent criticisms of retroactive legislation is found in adverse possession rulings where individuals fulfill all then-current requirements for a prescriptive claim, only to see the legislature change one or more statutory elements. Courts nationwide consistently condemn the retrospective application of legislative changes to statutes relating to limitations for real property. Retroactive application in these cases effectively takes away property titles that had already been perfected under the prior—and legitimate—system. Arguments against retroactive legislation for adverse possession claims may be found in rulings from Arizona, Colorado, Delaware, Georgia, New Jersey, New York and Maine.
Examples of recent attempted changes may be seen in two separate bills that were introduced, but failed to pass. In Maine (2013) and Vermont (2017), these new standards would have severely curtailed or abolished adverse possession claims in those jurisdictions. Neither bill made any provision for prescriptive claims perfected before the enactment of the new laws. Had the bills passed, the courts likely would have applied them only as prospective laws, opening a new ‘Pandora’s Box’ for claims that either commenced or were perfected prior to the effective date of the legislation.
In Rice v. Huff: 22 S.W.3d 774 (2000) The Missouri court considered a prescriptive claim against a city street that was purportedly abandoned by a city resolution recorded February 3, 1975. Three days later, the local newspaper described the vote and noted that two blocks of Twelfth Street would be deeded back to adjoining owners. However, the mere vote by the board was insufficient to formally vacate the road and no additional action was taken until 1988, when a landowner called attention to the uncertain status of Twelfth Street. That year, the Board of Aldermen passed a legitimate ordinance that formally abandoned the road.
Although the Board of Aldermen expressed an intent to ‘back-date’ the ordinance to abandon the road as of 1975, that desire was not fulfilled by a legitimate legal process until 1988. As a result, thirteen years of apparent adverse possession between 1975 and 1988 was actually invalid because of the continued status of Twelfth Street as a public way. The court explained why the 1988 ordinance could not cure the insufficiency of the 1975 vote: “Retroactively vacating the street would give legal effect to a past transaction that otherwise would have no such legal effect. The motion by the Board of Aldermen in 1975 did not result in a vacation of 12th Street. A retroactive application of the ordinance would change the legal effect of the transaction, giving legal effect to Clara Knutter’s possession of the disputed tract for the ten-year statutory period, which otherwise could not have been adverse to the city.”
Several recent federal cases have also pointed out the fallacy of retroactively redefining riparian property rights associated with the public trust doctrine. In State of North Carolina v. ALCOA: 989 F. Supp. 2d 479 (2013), Judge Boyle echoed language from previous Supreme Court decisions to rebuke the State for its attempt to claim the Yadkin River bed by reliance on statutes written subsequent to the original private land grants: “As to the State’s reliance on an 1885 state statute regarding its ownership of the Yadkin River bed, states “may [not] adopt a retroactive rule for determining navigability which would [serve] to enlarge what actually passed to the State…” The state relied on a statute declaring the river navigable but failed to recognize either the significance or limitations of the statute.
Not all retroactive laws are unconstitutional. The examples above represent only a limited sample of the many ways that the Takings Clause and retroactive legislation can affect private property rights. However, they do serve to demonstrate the care that must be taken when reading and applying statutes that purport to alter vested property rights.
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