Users keepers: Pirates, zombies and adverse possession

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the ABA Journal’s. Lee Rawles, and today I’m joined by Paul Golden, author of the book, litigating Adverse Possession Pirates The Zombies. Paul, thanks so much for joining us.

Paul Golden:

Thank you so much. Yeah, when I was on the show last time, then I realized how much I enjoyed it, so I decided to write another book so you could put me on again

Lee Rawles:

Just for me, I am very touched and for anyone who’s looking for that previous episode, we are talking about Paul’s book, litigating Constructive Trusts, and I will say you have a knack for writing a challenging headline that then has a really fun subtitle. So for everyone who clicked on this link, because they saw Pirates V zombies, can you explain to them what adverse possession is and how that subtitle applies?

Paul Golden:

So adverse possession is kind of like squatting exponential. Squatting is sometimes used as a term that means a lot of different things, but oftentimes people mean it in the context of someone entering a premises like an apartment and just not leaving. Sometimes you have to use the court to evict that person. Adverse possession is that greatly magnified, and that’s when you’ve occupied real property in a manner which really shows you own it. You think you own it, you’re acting as if you own it. And if you do that for a long enough period of time, then you actually do become the owner. Regardless of what a deed might say or what land records might say, you actually just become the owner.

Lee Rawles:

So it’s kind of like a user’s keepers instead of finder’s keepers?

Paul Golden:

Yes, that’s a good way of phrasing it. Sometimes people do find it though, and then once, but finding it of course is not good enough. You actually have to start using it.

Lee Rawles:

I think that it would help people if we could talk about a real life situation in which this may occur. So this could be something really minor. I’m going to use the example of my stepfather who built a crooked fence. He didn’t mean to build a crooked fence, but he did. He is not a fence builder. When he put it up, he did not calculate the angle, right, and it turned out his neighbor discovered the fence went approximately three feet into the neighbor’s land. There’s now a slice of the neighbor’s land that is fenced and it’s in my stepfather’s yard. If this head gone unnoticed, could there have been an adverse possession claim? And if so, how long would this fence had to exist? What are the conditions? If my stepdad had done this on purpose, would that make a difference? There’s a lot of questions that go into these claims as we know, because you got to write a whole book about it.

Paul Golden:

Yes. Well, if you’re asking for free legal advice and that’s why you put me on the show,

Lee Rawles:

Oh, I’m not in the real world. What happened was the neighbor pointed it out and then my stepfather and the neighbor took down the fence together and put it up correctly with the help of my brother-in-law.

Paul Golden:

I see there’s a lot of questions in those sort of things. These sort of things do happen over and over and over and over again. As you can see, if you read a lot of cases, which I had to, it depends on a lot of different factors. In fact, it depends on what state we’re talking about. For example, in New York, there’s something called, not to get into too much nitty gritty for the purposes of this call, of this interview, but if there’s just defense and then it just goes through a lot line, there is a statute which as I read it, indicates that that won’t help with your adverse possession case. That fence alone won’t really do it for you. I don’t believe that all states agree with that. And of course, every state has its own rules about how long it has to be in place.

Then there’s also the issue of whether the neighbor complained about it or tried to make you take it down. And there’s also sometimes there can be issues about who worked on the fence, was it worked on by both sides. And then there’s a slightly different issue which people who just hyper focus on adverse possession wouldn’t think about because there’s also what’s called an agreed upon boundary doctrine, which indicates that if two parties have a disagreement or they’re not quite sure about where the boundary really, really is, and sometimes these surveys can be a little bit confusing or vague because it’s based on, well, 20 feet from this tree or something like that. If they can’t, sometimes if neighbors can’t figure out where the boundary is, they can just make an agreement, shake hands. This is where the boundary is. If they make an agreement like that, and then sometimes the court will say, well, even regardless of the adverse possession idea, they’ve agreed on the boundary. And now even if someone waves around the survey and says, oh, we were wrong about that, it won’t help. They’ve already agreed upon the boundary.

Lee Rawles:

And just thinking about the issue of adverse possession, you can kind of come at it from a couple different angles, and I’m going to read your own words at you for the benefit of the listeners. I thought this was an interesting way to put it. Perhaps another way of looking at adverse possession is in terms of capitalism versus communism, is taking property that no one is using and no one is claiming a form of pulling oneself up by the bootstraps and therefore a form of capitalism. Or is it a form of communism where society approves of sharing assets and of taking assets away from the rich who have so much property, they do not even notice when it is missing. And then you say, if one knows the judge’s politics, one may decide how to approach the topic. A potential argument from the left is just as possible as an argument from the right. And I did find myself just going back and forth trying to think about, oh, how do I feel about this? How far back can you go to say, wait, no, that should be mine when someone else has occupied a place for a long time or it is a lot to think about. So when you are putting together the book and when you’re talking to people about adverse possessions, what are the reactions you usually come across from people who are less familiar with the issue?

Paul Golden:

Well, I think everyone is familiar with it to some degree or another. When we’re talking about the average person on the street and you start explaining what average possession is, I think they have a knee jerk reaction and thinking like, how could something I own suddenly be occupied by somebody else? And then they claim it as their own. And they’re thinking about, as I put in the book, they’re probably thinking about the situation. If you go on a vacation somewhere and then you come back two weeks later and you find a bunch of mountain men in your house with shotguns and they say, well, it’s mine now because you left. You can insert your own accent in there if you like. That is one extreme, but there’s another extreme on the other end is if you actually paid money for a property, let’s say, and you built it up and you’ve been occupying it for years and years and years, and it’s increased in value and everyone in town knows it to be yours, and then later on you find that there was some decades later you might find there was some issue with the deed or the person who claimed it, sold it to you, didn’t really have the right to sell it to you or things along those lines, you would certainly hope that you wouldn’t be kicked out in your old age from that premises that you had actually believed you owned for all those years and built up from nothing into something.

Lee Rawles:

We’re going to take a quick break, Dhir from our advertisers when we return. I’ll still be speaking with Paul Golden about his book, litigating Adverse Possession Pirates V Zombies. Welcome back to the Modern Law Library. I’m your host, the ABA Journals. Lee Rawles here with Paul Golden. So Paul, let’s talk about the zombies portion of the Pirates V zombies. How does it happen that someone’s land or real property can be vulnerable to someone claiming an adverse possession on it?

Paul Golden:

Well, there’s a number of reasons that could happen. One of them could be that if you own a great deal of land, that you might not be inspecting your own land at all times to check if someone else is using it. It could also be the fact that you’re not a hundred percent sure where your boundaries are, and people have been using where you thought the boundaries were as the actual owners. It had been used by the other side for a long enough period of time that you started to be convinced that yes, that maybe that really is where the boundary is. Those sort of things can happen,

Lee Rawles:

I think of adverse possession and the first kind of historical connections I have with it, I think about kind of manifest destiny and about how a lot of people arrived in America said, well, you’re not using this land in the way that we find to have the most utility. Why aren’t you farming? And the tribes who were there may have said, we absolutely are using this land. We use it in a different manner than you do what’s happening. And in that case, adverse possession seems so scary and hostile and tied up with a lot of colonialism and things, but adverse possession, you bring up the code of Hammurabi. This is not an American legal idea solely. This is an idea that has gone back through recorded human history. What are the elements that seem to be commonly agreed upon across time when it comes to adverse possession or are there any

Paul Golden:

That’s a good question. Adverse possession. The elements of what it takes to prove adverse possession and the concept of adverse possession has been with us for thousands of years. I am sure it’ll be around for thousands of years from now. It is just something in human nature that people want to fight about land, and sometimes there is some confusion about who really owns the land. And if you occ occupy, if someone occupies land for a long enough period of time, whether they’ve got a deed for it, maybe it’s a bad deed or they have some other reason to think it’s theirs. If they’re occupying it for long enough, it just becomes part of human nature that you’ll believe it’s yours and you’ll become apoplectic if you don’t get to keep your property or what you think is your property. So this kind of thing has been going around for thousands of years in the past and thousands of years from now, but I think the world was saying, when are we going to get a book about how to litigate adverse possession? And luckily they found somebody. Yeah, this seems to be the, as far as I can tell, this is the first book which really focuses in on Litigation, how to litigate them, what defenses there are, what kind of workarounds there are, and then also focuses on the various elements of them.

Lee Rawles:

Let’s get into that though. I want listeners to know what’s available in the book, and much like with your previous book, you have very useful appendices. So could you talk about the appendices? I know everyone, that’s the top question on everyone’s mind, isn’t it? But what about the appendices?

Paul Golden:

Well, you forgot to ask about the index.

Lee Rawles:

The index is quite good. I can attest to that. I did look at the index.

Paul Golden:

I heard that you read the end of this book first because you’re one of those people who can’t sleep at night unless you know what happens at the end,

Lee Rawles:

And I found out that there were many pages in it. Yes, yes.

Paul Golden:

So the appendices are, I’ve got two of them. One is sample complaints of other cases where people were seeking adverse possession. And then I have a list of questions that can be asked at depositions for if you’re representing the adverse possessor or the actual title owner. And then the rest of the book has I cover the traditional elements of what it takes to prove an adverse possession case. Then I talk about unusual elements that only certain states have. I talk about some of the defenses that can be done. And then I also have, as I said earlier, workarounds, there are ways around using a traditional adverse possession approach and finding another approach that might be just good enough as far as your client goes.

Lee Rawles:

I did think it was interesting how much it can vary from state to state. This is based on common law, but common law in different areas can carry a different connotation. I found the most startling one to be South Carolina and their test of bad faith. Could you talk a little bit about that as an example?

Paul Golden:

Well, South Carolina is a funny one. They have in certain states, in many states, if I occupied your premises by mistake or I thought this was mine, or I thought this portion was mine, it actually wasn’t. I just misunderstood where the boundaries were. Then in many states, it doesn’t matter if I occupy that space in a certain way for a long enough period of time, it becomes mine. But in South Carolina, at least according to one case, you actually have to have a, shall I say evil state of mind, the adverse possessor, and he actually has to say, Hey, listen, in his own head, I know this isn’t mine. I know for damn sure it’s not mine, but guess what? I’m taking it. Grab it and then you hold onto it. But if you were to admit in court, at least according to one case, if you were to admit in court, oh no, that was just a mistake. I didn’t realize this wasn’t mine, then you’ve lost your case, which seemed to make South Carolina an outlier. But everything depends, and that case may have been just an unusual one.

Lee Rawles:

Well, we have been using some language that it seems like actively aggressive. There is in adverse possession, they use the term hostile, but hostile doesn’t have the same meaning in adverse possession legal cases as it would if you and I were just using it in common speech. Can you go into what the word hostile really means and refers to in adverse possession cases? It doesn’t necessarily mean the neighbors were going at each other with knives,

Paul Golden:

Right? Yeah. It’s one of those reasons that lawyers live in their own world and normal people live in their own world. When you’re in the land of adverse possession, you don’t use the word hostile in the way that normal human beings use. The English language, hostile in the context of adverse possession really just means without permission. If someone, I think that’s kind of obvious that if it’s with permission, if I said, Hey, you can put your equipment here and you can put up something here and you can do something here. If I gave you permission to do that on my land, then you would never be able to say, oh, I adversely possessed it. It’s got to be with, as lawyers would say, with hostility, the adverse possessor must take it with hostility.

Lee Rawles:

So I grew up in a very rural area. The town I was assigned to by the post office had 400 residents. And did the

Paul Golden:

Post office assign you to a town? It

Lee Rawles:

Did. It said, live here. Yes, live right here. Roll route one box 1 37.

Paul Golden:

Was that after you were born or before you were born? They assigned that to you?

Lee Rawles:

Well, my parents already lived there, so it was afterwards. So as I said, I grew up in a very rural area and there were a lot of handshake agreements made about land use, particularly when it came to things like driveways paths through woods. You weren’t going to be planting crops in a forested area, but your neighbor may want to take a shortcut to the river with their A TV, and so they have a little path, et cetera. That’s all fine and good, while the two people who made the agreement are still living and getting along with each other, but generations later, those people may not be around. The land may still be being used, but there’s not this same agreement that was made between one person and another person still living. Are those times when adverse possession cases come up, especially if, let’s say the family, that person passes, the family wants to sell the land and the people wanting to buy the land say, wait, but what about this weird little track that’s on it that people keep coming through with their ATVs on, is that when you tend to see adverse possession cases coming up,

Paul Golden:

Things like that can happen. Don’t forget if you’re an adverse possessor and then you are going to say, well, my grandfather or father or great-grandfather agreed that I was allowed to use this space. If that’s going to be your argument, you know what you’re missing? You’re missing the hostility, and you might blow it just by that alone. So if you’re going to be a true adverse possessor, you better not say something like that regardless if you’re just going to, shall I say forget that that agreement existed and just take a different position as an adverse possessor, then yes, if you’ve been using a certain space as a pathway, that’s a slightly different issue That could be called an easement, and I’m not going to get into the nitty gritty with you on this interview unless you beg and plead me to, but yes, you can find a way to claim what’s called an easement. That means a right to use someone else’s property in a certain manner, and it works akin to adverse possession.

Lee Rawles:

I’m going to bring up another phrase that just sounds inflammatory to someone new to this area, which is Notorious possession. What is a notorious possession? You have a chapter in your book, Open-End Notorious Possession.

Paul Golden:

Right? Do you remember the song I referred to in that?

Lee Rawles:

I do not. Is it the Duran Duran song?

Paul Golden:

Yes, you do remember it.

Lee Rawles:

Okay, there we go. Good for me.

Paul Golden:

Either that or you opened up the book

Lee Rawles:

While I did. I have it open next to me. I have to admit,

Paul Golden:

So notorious just means, basically means you used it in a way that everyone knows that you’re using that, which is kind of a funny little thing because in theory, if you really, really want to prove a adverse possession case, in theory, the best way of proving it would be to collect all the neighbors from around and who could all say, oh, yes, John Smith, the adverse possession. He actually did really use it openly, obviously made a nooses of himself and really showed everybody, Hey, this is my property. This is one of those funny cases where a rumor can become actually true. If everyone in town knows something to be the case, then it actually could become the case in part because of all the rumors around, and I’ll ask you this, which movie had the phrase Rumors? I love rumors.

Lee Rawles:

Oh, I don’t know. I have to say

Paul Golden:

That’s in glorious. I guess you’re not a big Quentin Tarantino fan.

Lee Rawles:

I did see it once. I enjoyed the Nazis being set on fire. I hope that that’s not

Paul Golden:

Spoiler

Lee Rawles:

The spoiler, but yes. Well, we are going to hear more from Paul in just a second, but first a word from our advertisers. Welcome back to the Modern Law Library. So Paul, you have talked about litigating adverse possession. You have talked about the litigating of constructive trusts. If you wanted to attend an episode of the Modern Law Library for a third time, do you have a third book in your mind or on the way?

Paul Golden:

Yes, I do. Is that an invitation?

Lee Rawles:

Not necessarily. I have to read it first.

Paul Golden:

Oh, I see. I didn’t know that was the rule. Yes, I’m doing one. I don’t want to give away too much, but it’s about Litigation and it’s about a certain science fiction premise that was developed and copyright Litigation concerning that. I’ll give that much away.

Lee Rawles:

Oh, that’s intriguing.

Paul Golden:

For all those people who love my books that much, this will really make their hair go on fire and get excited, I think for the next five years until it’s done

Lee Rawles:

Litigating science fiction. Have you heard back from people who have been able to use your books? Obviously this one’s a newer one. Litigating Constructive Trusts came out in 2022, but to me, having looked at both of them, they are very usable and bring up a number of points about areas of law that people may not have encountered since law school.

Paul Golden:

Yeah, I have been getting people who look up these issues and then they will sometimes just non-attorneys who will sometimes look up the issue and then buy the book, and then they want to hire me to help them with certain matters. I’m talking about for the Constructive Trust book, and yes, I would expect this one, the adverse possession. If any attorneys are handling adverse possession cases and they want to call me for advice, that’s perfectly acceptable. I wouldn’t be surprised if somebody reads the book because they’re going through their own adverse possession case and may want to read about it, and they’re also welcome to contact me. But I did write it so that it’s kind of a one-stop shop and you can really get your feet wet and really understand a lot more than, let’s say 95% of attorneys would know if you just read this book, and I would hope it would give you a nice leg up on litigating either side of an adverse possession case.

I’ll tell you one of the people who wrote a blurb, I got two different blurbs from real estate professors on this book, and one of them said in a private email to me and he said, I loved this book, and he underlined the word loved, and then I said, oh, can I use that on the blurb? And he said, no, but maybe it’s the kind of book that only a real estate law professor would love. But I did write it so that it was main intentions for litigators of course, but I did write it in a way that I hoped that non litigators could also be able to read and understand, and if they’re facing anything like it, they could get a few hints or a few pointers. It’s once was said that if you really, really understand something, you can explain something in a way that’s easy to understand, and that was my goal when writing this.

Lee Rawles:

So if I’m not mistaken, you do have quite a bit of experience in appellate practice. Do you have any do’s and don’ts or I guess it would be mostly don’ts, things that you have seen people make mistakes on when it comes to adverse possession cases that are pretty common, so like a really common flub that you can make in representing a client in an adverse possession case. What are some really common mistakes that people make either in defending against adverse possession or claiming adverse possession?

Paul Golden:

I work for a firm called Coffee Modica. It’s a great law firm and as many locations, one of the things I focus in on and which the firm also handles is real estate Litigation and appellate law, appellate Litigation when it comes to mistakes that can be done in adverse possession cases. Well, one of the critical things is I think is if you’re really the owner is to try your best to say that during the 10 or 20 years that the adverse possession was going on is for you to indicate somehow to the best you can that you were also using the property too, and you were not just letting that adverse possessor use it solely and unilaterally. You want to get in there and say like, yeah, you don’t want to admit that the person did it hostilely. You want to say, oh, I gave him permission. Or you want to say, well, I was using it too. You have to be careful not to admit too much stuff. Of course, you always want to tell your client to tell the truth, but it would be best if you’re the actual title holder that you did not let that adverse possessor use it for the full period without a break and without you also stepping foot on that property.

Lee Rawles:

I had a vegetable garden right next to that fishing cabin,

Paul Golden:

Right, or that I set foot in that fishing cabin, right? There was one funny story from the book, one funny case where someone had taken away or claimed to have taken away property from the adverse possessor had had claimed to take away property from another person, and he was very confident in that, and then they asked him, oh, did you let anyone else on there too? And he said, oh, sure. I would let other people on there too. That ruined his case for him because as an adverse possessor, you want to really focus in on it was me and only me that was occupying that space to the best you can. There’s exceptions to that rule. Of course, and if you give me another 65 hours, maybe I’ll go through all the exceptions.

Lee Rawles:

Oh, that is longer than the length of our episode, Paul.

Paul Golden:

Is it? I was promised 65 hours. Oh, wow.

Lee Rawles:

Well, Paul, if someone was interested in hearing 65 more hours or engaging with you about the book, picking up the book, do you have a website or email address that you want to share?

Paul Golden:

Sure. Well, there’s, first of all, there’s going to be a link. Obviously there’s going to be some people are not just going to find this one, this episode accidentally on the dark web, I guess they’re going to find it on the ABA website. I’m going to provide a discount code, which will be available on your site, and that if you listen to this podcast and order the book within approximately 30 days after the podcast is released, then you can get a discount.

Lee Rawles:

We’ll have that in the show notes, and you can always find all of our episodes on the ABA Journal website, ABA Journal dot com slash books. So if you’re looking for that discount code, it will be alongside this episode.

Paul Golden:

I’m sure the website will also indicate my email address, but as I said, I work at a firm called Coffee Modica, LLP.

Lee Rawles:

Alright, well thank you to Paul and thank you to our listeners for joining us for this episode. If you have a book that you’d really love me to cover in a future episode, you can always reach out. That’s books at ABA Journal dot com. And if you enjoyed this episode, please rate review and subscribe in your favorite podcast listening service.

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