
I’m sure many people remember the infamous case of eminent domain in New London, Connecticut that made all the papers a few years ago. Briefly, the town of New London wanted to condemn property through the use of eminent domain in order to bolster what they believed would be economic development beneficial to the town and thus its citizenry. The owners of some of the properties the town wanted to buy would not sell and the case wound up going to the Supreme Court who voted 5-4 for New London. Typically, cases of eminent domain involve a governmental body taking private property for public use such as needed road improvements or other public infrastructure. The New London case was different in that the town was going to allow a private developer to build shopping centers, housing and the like claiming this “redevelopment” would benefit the public by increasing the town’s tax base, lure tourist dollars, etc. For the record I’ve been to New London and can say it does need all the help it can get, although I’m not sure a new Pottery Barn and luxury condos are the way to go. But that’s an argument for another time. Still, the case shed some light on the rights of government to use eminent domain to acquire property in cases of public need. The owner of the property is entitled to just compensation (usually market value) for the taking. Not necessarily as draconian as it was made out to be in the press, most instances of eminent domain are dramaless exchanges of relatively small amounts of property for tax payer cash and rarely receive the kind of media coverage the New London example did.
But this post is not about eminent domain.

Let me introduce you to Eminent Domain’s ugly cousin, Adverse Possession.
Adverse possession, in a nutshell, is a process by which your neighbor or other party have taken possession of your property without your permission, or adversely, and they have done so without having to pay for it. Sound ridiculous? It’s not. This is a subject near and dear to me because I have some personal experience with it, and not in a good way. I bought my first house in 1992 at the tender age of 25. Not a great house, but not bad; a small ranch on 2 acres in the rural suburbs. It was located at the end of a cul-de-sac in a subdivision where most of the houses, mine included, were built in the late ’60s. The first owner of my house purchased it in 1970. I was the third owner so as you can tell, not a lot of turnover in this neighborhood. The neighbor on the east side of me was the original owner of his house also since 1970 and for the purposes of this discussion, we’ll call him Addy Posse. Addy was a nice enough guy, about 50 and lived there with his wife and two children who were about my age but had yet to leave the nest. My only real problem with Addy was the habit of one of his baby birds to come home drunk on Saturday night at which time he and Addy would proceed to involve themselves in screaming matches that I could hear inside my house. But hey, it was Saturday night. And if occasionally Addy’s wife made a phone call and the state cops showed up, well, the more the merrier.

So time passes and I’m on a friendly-aquaintance type basis with Addy, his wife and the baby birds. In 1997 I build a garage on the east side of my house (the side facing Addy’s place). I need this garage because my rancher didn’t have one when I bought it and I had been parking my half-restored 1969 Camaro in the driveway for 5 years. Any car guys reading this know this is sacrilege and I was determined to have a house for the car. So, because of the neglect suffered by the Camaro since buying the house, I had saved enough money to build the garage. And the construction was well within my lot’s building setbacks. I know this because prior to the planning of said garage I had a boundary survey done. But that’s when I realized things may not be as they seem when it comes to my property. The survey showed, interestingly, that a row of evergreen trees starting at a point in front of and to the side of the new garage and running down to the street that I had previously thought were on the boundary line separating Addy’s lot and mine were, in fact, well into my property to the tune of about 20 feet (did I dangle a participle? Sorry, the trees I mean). So big deal, right? I actually owned and paid taxes on a triangle of land on the other side of the trees. Addy’s side. The side the baby birds often parked cars on for their raucous parties. I didn’t really care though; Addy was out there once a week on the ol’ Snapper mowing my grass on the other side of those trees, but I wasn’t using it and if it made him happy, fine. I built the garage and Addy even complimented me one day as I was up on the roof hammering shingles in. “Nice garage” he said. “Thanks!” said I. And that was that. Or so I thought.

Fast forward to the spring of 2002. The housing bubble’s burst is still 5 years away and I have an opportunity to buy an empty lot in a very nice neighborhood and build a new house. With 10 years of appreciating value and the improvements I’ve made to the rancher I’ll do much better than what I bought it for. Money-wise the larger, new house and it’s requisite larger, new mortgage (30 year fixed baby!) is still a stretch but I figure my old neighborhood isn’t getting any better, business is recovering with 9/11’s economic impact beginning to fade and mortgage interest rates are low so like the Jeffersons I decide to move on up. A “For Sale” sign gets pounded into the front yard of the little ranch I’ve owned for a decade. After a few weeks of allowing strangers into my house to judge my decorating savvy an offer comes in. We go back and forth using our respective agents for the dirty work until a mutually agreeable number is reached. We sign an agreement of sale; settlement in two months. A couple days after the “Sold!” sign goes up I come home from work to find a note folded up in my mailbox. It’s from Addy’s wife. “Smithery”, the note begins (just kidding), “You’ve been a good neighbor and we had not wanted to say anything before now. But since you are moving we have to tell you that your garage is too close to our property line. This is a concern for us since whoever moves into your house may not be a good neighbor and this could lead to problems. We thought you should know because we are going to tell the Township [our local governing body] that your garage is in violation of the building setback.” Drag man. I was supposed to go to settlement soon! If they had some kind of problem, how could they wait this long to tell me?? FIVE YEARS!! For five f ‘ing years they did not say a thing about having an issue with my garage. And now they decide to clue me in to the perceived injustice. But not after the For Sale sign went up. No. They had to wait until I had a fish on the hook and a drop dead date to get the hell out of Dodge. I have no words to express how pissed off I was. I had a goddamn survey PROVING my garage was well within the Township required setback and…… um… yeah. Wait, that’s right; I had a survey! All I had to do was go have a conversation with Addy and like the two gentlemen we were we would calmly discuss the issue and he’d see there was no problem, no setback violation and no reason to fuck up my settlement.

Addy didn’t believe my survey at first. I went over to show him the plan and pointed out that the trees he thought were on the line were actually on my property. See? there’s the pin, out there at the edge of the street and the line goes from there all the way to the back corner of our lots. The line is more than 30 feet from my garage, 5 feet more than the minimum setback. He wasn’t sure, he said. He’s been cutting that grass and parking his cars there for over 30 years. I said I’m sorry, but be that as it may, my garage is not in violation. Well, ok, he grudgingly acknowledges that with the survey I had done and a copy of the original 1968 subdivision plan my surveyor had dug up someplace, he agreed the line was where the line was. He said he may want to have his own surveyor verify it. I said that was fine; I was confident my guy was right. After that I didn’t hear from Addy again. As settlement drew near I packed up my stuff, moved it into storage (the new house wasn’t done yet) and in September, 2002 said goodbye to the little rancher. Shortly after I go to settlement. The buyer was a gangly, sickly looking hayseed with a plump wife and a couple of grown baby birds of his own. Think Tim Kazurinsky as Pa Greavy in, coincidentally enough, Neighbors. I figured he and his brood would fit in just fine with Addy and his clan. I ran, not walked, to the bank with that big-ass check. And that was that. Or so I thought.

Fast forward again to 2005. I’m in the new house, hating the mortgage and tax payments but otherwise really enjoying the new digs. So I’m at home one day just lovin’ life and I get a phone call out of the blue from Pa Greavy. I hadn’t moved that far away and my number is in the book so it’s not like you had to be Jim Rockford to track me down. Pa said he’d been having some trouble with the neighbor fella, one Addy Posse. It seems Addy had been complaining to the Township about Pa’s unregistered vehicles and excavating equipment (backhoes, a dump truck, etc) he keeps in the back yard. I’m not wholly unfamiliar with this information. I’ve got friends at the Township as well as others in the know so I’d heard there had been some squabbling. I had even heard the term ‘meth lab’ but it was only a rumor. “It’s my business” Pa says, “why can’t I keep my own equipment in my own back yard?” Sounds reasonable to me. “Well,” Pa says, “I wanted to put up a fence, a big one. Eight feet tall. I got it all the way from the back down to the front of the garage and this Posse asshole’s telling me that’s not my property.” Uh oh. Pa continued: “I hired a surveyor [not mine] and so did he [also not mine] and they both say the line’s where I think it is [where mine said it was years ago], but Posse’s sayin’ that since he’s been maintaining that ground, it’s his. He said he’s got rights to it called adverse possession.” The words hung there, caught, bridging the gap between the phone’s speaker and my ear. Adverse possession. I’d heard of it, but I’d also heard there was a lot you had to prove before you could take title to ground that wasn’t yours. My first thought was the garage. If Addy was claiming he owned that land, then my garage surely claimed it back for me since to say otherwise would put the garage in violation of the Township’s code. I asserted my ownership of that property by building the garage. Back to Pa. He said he’d hired an attorney since Addy was taking him to court to claim as his own that small triangle of land on the other side of the evergreen trees. Would I mind speaking to Pa’s lawyer about my history with the property? Sure Pa, I said. I’d be glad to.

Pa’s lawyer calls my office a few weeks later and I lay it out for him. The mowing, the garage, the survey, the note, my conversation with Addy. The lawyer asked me some questions to clarify his understanding of these facts. I deal with a lot of attorneys in my line of work and this guy seemed a little out of his element, like he was a tax attorney trying his hand at real estate law. I asked him how things were looking for Pa Greavy. “I’m a little worried” he confided. The crux of the issue was that in order for Addy to take possession of the land, his claim had to pass five tests. Did he use the land? Yep, witness the lawn mowing and car parking. Was his claim obvious? To me it was. I watched his fat ass jiggle on that lawn mower as he mowed the triangle of grass as I’m sure the previous owners of the property had. Did I ever use the land myself? No, except for the garage which in my mind, but apparently not as interpreted by statute, was a claim of ownership by virtue of the boundary setbacks. Did anyone, other than him or me, ever regularly use the property which would have diluted his claim of exclusivity? Nope, it was his party and no one else was invited. And the biggy: Was the use continuous? In my state, the use must be continuous for at least 21 years. It was the fatal shot. Addy had been mowing that grass and parking his cars on that property for 21 years before I even bought the little rancher. Unsurprisingly Pa Greavy’s attorney had been unable to track down the two owners previous to me. But even if he had it’s unlikely their stories would be different from my own. The case did go to court, I made myself available as a witness for Pa but I wouldn’t perjure myself for him. I sat on the witness stand and answered the questions of Pa’s attorney, Addy’s attorney and the judge. It was clear Addy had it in the bag. There was some pretty funny testimony from one of Pa’s baby birds, who apparently had no qualms about violating the state’s perjury laws. The judge wasn’t buying his claim that he’d seen Addy, Addy’s wife and their attorney out in the yard putting in fake property marker stakes. It didn’t matter anyway, by that time the writing was on the wall.

In the end the judge ruled in favor of Addy Posse. Pa Greavy had to swallow his pride and move his fence. Fortunately, as pissed off as Pa was at Addy, he didn’t feel inclined to take it out on me in the form of a lawsuit. He could have tried I suppose, but he fell victum to the same issue I did, he just had more of a problem with it and rather than try to reach an amicable agreement with Addy, had be hard-nosed about it. Not that Addy helped the situation from his end; he could be kind of a dick, too.
I haven’t heard from Pa or Addy in the years since the day in court. Pa’s still there; I drove by the little rancher about a year ago. The eight foot high fence looms over the side yard and Pa’s vehicles and those of his flock are strewn about the front yard. So let that be a lesson to you: If you own property, make sure you 1) know your boundaries, 2) assert your rights of ownership and 3) don’t let anyone usurp your rights of ownership. And that is that. Or so I think.