Adverse Possession - A Quick Primer on Adversarial Real Estate Law

Angus McThag responded to my post about the Bundy affair, and made a salient point about adverse possession, and wondered how that rule might apply in the case of Bundy vs. the BLM. 

First, to those who don’t know, the rule of adverse possession is an important part of our property law that you should all probably know about.  It basically says that if person A uses or improves person b’s property in some tangible way for a period of 7 years without person b telling him to stop, then that piece of property becomes the legal possession of person a.  The use may be as simple as just walking across a corner of the lot every day, and beating down a trail to do so (you wouldn’t gain possession of the entire lot, just the trail that you used). 

So many people are wondering if Bundy might not have a claim to that BLM land via adverse possession, since his family has used it for 100 plus years now. 

The answer is a very straightforward “NO.” Even Bundy, himself, isn’t trying to argue otherwise, and he’s taking some pretty serious liberties with what laws he thinks apply to him.

Property owners can avoid adverse possession in one of two ways.  They can either grant an easement to the person using their property, or they can evict them. 

Granting an easement is as simple as drafting an agreement that says “I, the property owner, allow you, the property user, to use my property under the following terms and conditions.”  There are many types of easements, but the simple ones that most people are familiar with are things like leases, rental agreements, and access easements.  As I’ve said before, my family is big into wheat farming on the Palouse.  My family allows what are called “custom” farm outfits to farm their land quite regularly, since most of them are getting too old to farm their land themselves.  “Custom” outfits are essentially landless farmers, who just farm other people’s land.  One outfit has farmed family land continuously for 20 years now, but they hold no legal claim to the land at all, because my family has signed a lease agreement with them.  If they farm it for 150 years, we can still kick them off the ground in year 151 if we so choose, per the terms and conditions of the lease agreement.  It is the risk you take in using ground that you don’t own, especially ground off of which you earn your livelihood.  That custom outfit would be in deep doo-doo if my family terminated their lease, but that is the risk they take.  A family can rent a house for 30 years and not own it in year 31, and be evicted without recourse, because the rental agreement stops the clock on adverse possession

But if that same family squatted in that same house for 7 years, and the property owner did nothing about it, they would own that house.  Or, if the rental contract expired, and they continued to live there rent free for 7 years, they would own the house.    

For the 100 plus years that Bundy’s ranch has used BLM land to graze, he’s had an agreement with the BLM to use that land.  He is not a squatter.  The permits he was supposed to be buying were the lease agreements, just like my family ground with the custom outfit, and if the BLM decides not to renew, or to limit, or whatever, he’s got no recourse. 

Essentially, for that reason, his family has no legal claim to that ground based on years of use, via adverse possession.

The next question, then, is what about once Bundy essentially became a squatter in 1993 and stopped paying for his permits?  That’s been more than 7 years, so why doesn’t he own the ground now? 

The answer is twofold.

One, the government first tried to evict him in 1997.  That’s only four years, not 7, and an attempt to evict stops the clock on adverse possession, even if the tenant chooses to defy the eviction order and stay, as Bundy did.  If you give an order to evict, and the tenant won’t leave, and you do nothing for 7 years, then the tenant gets the property, but the BLM didn’t do that.  They’ve been fighting to get Bundy off their land pretty much continuously since 1997.  So check that off as a reason.

Two, even if the government hadn’t tried to evict him, and he’d been using that ground without their permission for 7 years without them doing a damn thing about it, the ground still wouldn’t belong to Bundy because of one key exception to adverse possession:

You cannot take adverse possession of (AKA condemn) public property.

This is actually a common sense exception, when you think about it, because public ground, by definition, generally allows anyone access without having to ask permission.  You don’t have to ask permission to use a park playground, or hike on a forest service trail.  If it were possible for a private citizen to condemn a public property, then all he’d have to do is walk on a BLM trail every day for 7 years, and that land would be his.  All he’d have to do is swing on a park swing every day for 7 years, and the park would be his.  All he’d have to do is graze cattle on the ground under the radar for 7 years, and he’d be able to take possession of land that belongs to the public. 

Get the picture?  That exception to adverse possession exists exactly for situations like this, to keep men from being able to surreptitiously take possession of public ground by grazing his cows there.  It exists because of guys who venture back into the forest and build ramshackle cabins, and if that cabin isn’t torn down in 7 years, he claims that public forest ground as his own. 

It exists because of men like Cliven Bundy.