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Forum Post: Adverse Possession.. how to survive homelessness

Posted 2 years ago on Feb. 6, 2012, 7:30 p.m. EST by gestopomillyy (1695)
This content is user submitted and not an official statement

Adverse possession is a common law concept developed in the 1800s. According to Lucas A. Ferrara, a partner in Newman Ferrara, a New York City real estate law firm, adverse possession was enacted to ensure that property wasn't abandoned and was "maintained and monitored." It requires the posting of a clear, public notice that someone is at the property -- hence the court filing -- and that someone would remain there for a specific period of time, usually 10 years.

After the time requirement is satisfied, the Robinsons of the world have the opportunity to claim clear title to the property. In the meantime, the original property owner could fight the action, but it would be costly. And since the house has already been abandoned, it's not likely the original owner would wage an expensive legal battle to get it back. The mortgage holder would have to fight a court action too.

now this is the first sensible old law i have ever heard of. and its legal

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[-] 1 points by nomdeguerre (1775) from Brooklyn, NY 1 year ago
[-] 0 points by nomdeguerre (1775) from Brooklyn, NY 1 year ago

I saw that story this morning. Thanks for resurrecting this post.

[-] 0 points by nomdeguerre (1775) from Brooklyn, NY 1 year ago

Does NYCGA know about this? I'm sure there are a number of large ex-industrial sites around the 5 boros, now abandoned.

I just tried to log into http://www.nycga.net and got a "This Connection is Untrusted" message. Anybody know about this?

Here's the Housing Working Group, looks like it's been quiet for a while now. http://www.nycga.net/groups/housing/

[-] 0 points by nomdeguerre (1775) from Brooklyn, NY 1 year ago

I did find mention of this practice on NYCGA.NET, but just barely. Anyone know the history?

[-] 0 points by mvjobless (370) 2 years ago

I believe the time requirement is 20 years, at least that is what it is here in massachusetts.

[-] 0 points by georgeorwell84 (15) from Montgomery, NJ 2 years ago

Not that simple - you have to have a claim on the title.

Adverse Possession Adverse possession is the taking of title to real estate by possessing it for a certain period of time. Title means ownership of real estate. The person claiming title to real estate by adverse possession must have actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title. By its very nature, a claim of adverse possession is hostile to the claims of other persons. It cannot be hidden but must be open and notorious in order to put other persons on notice as to one’s claim for possession of the real estate.

A claim to title by adverse possession often must be made under color of title. Color of title means a claim to title by way of a fact which, although on its face appears to support a person’s claim to title, is in some way defective and falls short of actually establishing title to the real estate. An example of a claim made under color of title would be a deed whose execution was defective or is in question. Another example is a claim arising from another person’s Last Will and Testament. Yet another common example is where two or more persons have received separate deeds to the same parcel of real estate.

Black’s Law Dictionary, Fifth Edition.

[-] 1 points by gestopomillyy (1695) 2 years ago

if you post a notice at the court house isnt that having a claim? and isnt the robo signing of forclosures puting the deed in question?

http://gma.yahoo.com/texas-squatter-16-mcmansion-kicked-8-months-173113977--abc-news.html

[-] 0 points by ZenDog (13366) from South Burlington, VT 2 years ago

Most abandoned property today is owned by the banks, isn't it?

soo . . . are they likely to let someone stay for ten years without sending the Marshalls to have them tossed?

[-] 1 points by mvjobless (370) 2 years ago

The property may appear to be owned by the banks but from what I have read about it alot of the deeds to these forclosed properties are gone and replaced with MERS documents which are now being called into question. I'm not sure what these MERS documents show but I have heard that they may not be sufficient to hold titile to any property.

[-] 1 points by ZenDog (13366) from South Burlington, VT 2 years ago

It does sound like this kind of action is exactly the kind of complication the banks do not want.

We don't have a lot of it up here in Vt. It would be really interesting to see something like this get seriously organized in areas where foreclosure has devastated the community.

[-] 1 points by peacehurricane (293) 1 year ago

Why not here? Come to Oregon get empty shelter be them the bank or government or whomever if they are empty use them and call it something to title from mers to what we choose and provide basic needs here in the most democratic ideal we live and make laws too as it is the most ideal democratic location whole world.

[-] 1 points by mvjobless (370) 2 years ago

I was just perusing the CNBC website and found an interesting article about the possible collapse of the NYC housing market. Reading through the comments I found a good one and here it is:

Keith Jarrow is right about the fact that the banks have not been foreclosing, and his conclusion would be right if the banks were just delaying. His conclusion is wrong however because the banks are not delaying foreclosing, the simply CAN'T (as in they are legally unable to)foreclose.

The mortgages in question were never legally transferred from the originators into the securitized trusts that supposedly own them now. The banks tried to get around this by using MERS and robo-signers. They can no longer do this. The "experts" keep saying that the banks have to get their paperwork in order and then they'll ramp up foreclosures. You can't put paperwork in order that never existed in the first place. So get ready, each year the "time to foreclose" will get longer by one year and the average time to foreclose will be four years next year, and five years the year after that, because THE BANKS CAN"T FORECLOSE!!!

Eventually the cases will be dismissed for lack of prosecution and/or the homeowners will file actions to quiet title and in 20 years this will all be behind us.

I think this comment is absolutely right, and it does remind me of what Marcy Kaptur, Ohio rep said in Congress last year. She told people to just stay put in their forclosed homes and tell the banks to show them the deed/title to the property and if they couldn't, they had no right to the house/property.

A case in Florida, maybe two years ago, a judge told the banks that if they couldn't produce the deed to a house they had forclosed, the owner occupant was the rightful owner. The owner won the case in this court and got to stay in his house.

[-] 1 points by gestopomillyy (1695) 2 years ago

maybe so but its still as way to live in a house for a while. it would take six months or so for the bank to work thru the paper work and if you file at the court house .. they have to go to court to put you out. with the number of abandoned houses sitting around.. all the occupiers could do this easily

here is the link where i read about it. seems simple enough and would cost the banks millions

[-] 2 points by ZenDog (13366) from South Burlington, VT 2 years ago

It's a brilliant idea - the problem is that a bank has resources, connections, and attorneys.

If there is also a stipulated time span - ten years - then they also have time.

One solution might be to focus on

  • banks that are known to have used robosigning extensively

  • in communities where they have a lot of foreclosed property - more is better

  • and then use this procedure to occupy as many properties in the given community owned by that bank as possible. Thus it becomes not a single legal action they must contemplate, but perhaps possibly hundreds, where each one may leave them vulnerable to the consequences of the robosigning.

This would present a significant curb to their current pattern of behavior.

Best of all would be getting some of the original owners who were foreclosed on in on the action - but that might present certain legal challenges that favor the banks - don't know.

It's a fascinating idea, and over all I like it.

[-] -1 points by HarryPairatestes2 (380) from Barrow, AK 2 years ago

Open and notorious means having utilities opened in your name at the address. you will need to pay property taxes. Are you going to insure the property? Might be hard if the insurance carrier isn't convinced you have a right to be on the property.

Adverse possession typically involves open land where borders are not definite. Rarely does it involve taking over a house.

[-] 1 points by gestopomillyy (1695) 2 years ago

there is no law saying you have to have insurance on a house. thats only for your own peice of mind or else to cover the mortgage. and yes so what if you have utilites turned on? thats not hard and according to the law.. open and notorious only means you have to be public about living there thats why you pay a fee and declare it at the court house

[-] 0 points by HarryPairatestes2 (380) from Barrow, AK 2 years ago

Nope. You must pay the property taxes on the land/house and keep them current. Which means also paying any taxes that were due when you decide to move onto the property.

Homeowner's insurance protects you if someone gets hurt on the property and also your personal belongings if a fire or burglary takes place. No law requiring you have it but why risk financial ruin if the house burns down or someone breaks their neck while visiting you.

[-] 1 points by gestopomillyy (1695) 2 years ago

no the owner of the deed has to pay the taxes.. you wont own the deed for 10 years. .the bank or whomever has possession of the deed is who has to pay property taxes

[-] 0 points by HarryPairatestes2 (380) from Barrow, AK 2 years ago

Then adverse possession does not apply. Open and notorious means you put yourself out to the public as the owner of the property. Having someone else pay the property taxes while you squat on the land is not adverse possession.

Here is the California version of adverse possession as explained by the Dept. of Transportation.

http://www.dot.ca.gov/hq/row/landsurveys/Study_material/California-Adverse-Possession.pdf