The Last Great Real Estate Secret - Part 4 EXHIBIT #3
PEOPLE SEARCHING
There are many sites on the Internet that will allow you to search for people and information. You may find the sites using the major search engines like Google.com, MSA.com, Yahoo.com, etc.
Your first effort will be to try and find the owner of a property. Can the owner be found. If not, you proceed with the adverse possession.
If the owner is found you will make an offer to purchase. Whenever you plan on negotiating with a person for the purchase of a property it is important to learn all you can about him or her. Is the person recently divorced, are there judgments against them, have they filed for bankruptcy recently, has a driver's license been suspended, has the person bought or sold property recently, is legal action pending, etc.
That kind of information will tell you if the person is negotiating from a position of strength or weakness. It can indicate how you should frame any offer to buy. If you know the person is in a tight financial spot you may wait them out. You can suggest that you will just walk away if they won't accept your offer. The pressure is on them. You can find many other properties. Take your time and let them come to your offer.
Here are some Web sites where you can do searches for and about people:
www.whowhere.lycos.com
www.populus.net
www.fbi-files
www.1800ussearch.com
www.bigfoot.com
www.411.com
www.anywho.com
www.fpf.com
www.netdetective2000.com
EXHIBIT #4
BRUSS on AP
Bob Bruss is an attorney, investor and author. He is a syndicated real estate columnist and his weekly articles are carried by hundreds of newspapers across the United State. The following is Bob's answer to a reader's question:
QUESTION: We suspect our neighbor has abandoned his property. This residence has been occupied only one week in the past three years. It has not been maintained or repaired during this time and is now in a state of disrepair. There is a substantial property tax delinquency. It will be coming up for tax sale soon. We could be interested in bidding to protect our property value. What issues should be considered?
BRUSS'S ANSWER: First, visit the property tax collector's office to learn how much property tax is owed. As a concerned neighbor, you might want to pay those taxes to prevent the property from going to tax sale, where there could be intense competition from other bidders. If you buy at the tax sale, however, you purchase "as is", so remember "buyer beware" applies.
Second, try to find out what happened to the property's last legal owner. Did he die? Maybe he is still alive, and if you can find him, he might sell you a quitclaim deed really cheap. Before doing that, however, obtain a title report to learn what liens, if any, are against the property. If there was an unpaid mortgage, the lender probably would have foreclosed by now.
Third, if you can't locate the last legal owner or any heir, you might want to pay the property taxes (to stop the tax collector from selling the property) and occupy the property. This trespass is called adverse possession, and it's perfectly legal.
If nobody shows up to claim the property and kick you out, after the required number of years of "open, notorious and hostile" occupancy, you can obtain legal title in a quiet title lawsuit. For more details please consult a local real estate attorney.
( www.bobbruss.com )
EXHIBITS - PART TWO
EXHIBIT #5
MORE AP INFO
Here is more information about adverse possession. You will find opinions, commentary and excerpts concerning the laws of various states. What you will learn will help to guide you in your actions.
A. Function: All states have statues of limitation that eventually bar the owner of property from suing to recover possession from one who has wrongfully entered the property. (Suits to recover property are called "ejectment" suits.) Once the limitations period has passed, the wrongful possessor effectively gets title to the land. This title is said to have been gained by "adverse possession."
1. Clears title: The doctrine of adverse possession also furnishes the additional benefit of clearing titles to land.
Example: A state has a 20-year statute of limitations on ejectment actions. X claims that he holds title to Blackacre, and wants to sell it to Y. Y will only have to check the land records going back 20 years, plus perhaps some additional period to cover the possibility that the running of the statute of limitations might have been "tolled" for some reason in order to check X's claim of ownership. The fact that, say, 100 years ago X's alleged "predecessor in title" took the property by wrongfully entering on it, is irrelevant, since the right of rightful possessor to regain possession has long since been barred by the statute of limitations.
B. Requirements generally: To obtain title by adverse possession, the possessor must satisfy four main requirements: (1) he must actually possess the property, and this possession must be "open notorious and visible"; (2) the possession must be "hostile," that is, without the owner's consent; (3) the possession must be continuous; and (4) the possession must be for at least the length of the statutory period (perhaps longer if the owner was under a disability).
II. OPEN, NOTORIOUS AND VISIBLE
A. "Open, notorious and visible" requirement" The adverse possessor's use of the land must be "open, notorious and visible." Usually, this means that the possessor's use of the property must be similar to that which a typical owner of similar property would make. Example: Blackacre is undeveloped wild land suitable only for hunting and fishing. If D builds a small hunting cabin on the land, and enters several times per year to hunt and fish, this will meet the "open, notorious and visible" requirement if a typical owner of similar property would make such limited use. But it would not qualify if a typical owner would use the property more extensively, build a much bigger dwelling, etc.
III. "HOSTILE" POSSESSION
A. "Hostile" possession: The adverse possession must be "hostile." This merely means that possession must be without the owner's consent. Example: T occupies Blackacre under a lease from ), the record owner. T's possession of the premises is not "hostile" since it is with O's consent, so even if T resides for more than the statutory period, he does not become owner by adverse possession.
B. Bad Faith possessor: A minority of courts impose the additional requirement that the possessor must have a bona fide belief that he has title to the property. Thus in these minority states, a mere "squatter" never gets title.
C. Boundary disputes: Adverse possession is most frequently used to resolve mistakes about the location of the boundary lines. Most courts hold that one who possesses an adjoining landowner's land, under the mistaken belief that he has only possessed up to the boundary of his own land, meets the requirement of "hostile" possession and can become an owner by adverse possession.
IV. Continuity of possession: The adverse possession must be "continuous" throughout the statutory period, as a general rule.
1. Interruption by owner: Thus if the owner re-enters the property in order to regain possession, this will be an interruption of the adverse possession. When this happens, the adverse possessor must start his occupancy from scratch.
B. Tacking: Possession by two adverse possessors, one after the other, may be "tacked" if the two are in "privity" with each other. That is, their periods of ownership can be added together for purposes of meeting the statutory period. Example: Z, who owns Whiteacre, adversely possesses a small strip of the adjacent Blackacre, due to confusion about boundaries. Z adversely possess that piece of Blackacre for 15 years; he then sells Whiteacre to P, who holds for another seven years (and who adversely possesses the same strip). Z's 15 years of possession can be "tacked" to P's seven years, so the P meets a 20 year limitations period. (In most courts, this is true whether Z's deed to P recited the false boundary lines that A and B believe to be correct, or recited the true boundary lines that do not include part of Blackacre.
1. No privity: But if the two successive adverse possessors are not in "privity", that is, do not have some continuity of interest, then tacking will not be allowed. Example: Z adversely possesses Blackacre for 15 years. He then abandons the property. B then enters for another seven years. B cannot "tack" his holding period to Z's holding period, since they had no continuity of interest. But if Z had purported to give B his interest by oral gift, deed, bequest or inheritance, then B could tack.
V. MISCELLANEOUS
A. Length of time: The length of the holding period for adverse possession varies form state to state. It is usually 15 years or longer.
1. Disabilities: If the true owner of property is under a disability, in nearly all states he is given extra time within which to bring an ejectment action. Example: Statutes often hold that the running of the limitations period is suspended until the true owner becomes 21. Usually, the person is given an additional time, say 10 years, to sue after he reaches 21.
2. Tacking on owner's side: There is effectively "tacking" on the owner's as well as the possessor's side. Example: O is the owner of Blackacre in 1950, when A enters and begins to adversely possess. In 1960, O conveys to X. Under a 21 year statute, A will gain adverse possession in 1971, even though he has not held for 21 years against either O or X separately.
B. Rights of adverse possessor: Once the statutory period expires, the adverse possessor effectively gets title. However, the possessor usually cannot record title (he has no deed). But he can apply for a judicial determination of adverse possession, and if he gets it, that determination can be recorded as if it were a deed.
1. Need to inspect: Since a title gained by adverse possession usually cannot be recorded, a buyer of property cannot be sure that the record owner still owns it (and that the record owner can therefore convey a good deed) unless the buyer physically inspects the property.
2. Scope of property obtained: Normally, the possessor acquires title only to the portion of the property "actually" occupied.
a. Constructive adverse possession: But there is one important exception: by the doctrine of "constructive" adverse possession, one who enters property under "color of title" (a written instrument that is defective for some reason) will gain title to the entire area described in the instrument, even if he "actually" possesses only a portion.
C. Conflicts: If there is a conflict between two person's whose interests are solely possessory, the general rule is that the first possessor has priority over the subsequent one.
"Color of title" means there is a document giving the appearance of title, but which document is not legally valid.
From Arizona Statutes
12-523. Real property in adverse possession under title or color of title; three year limitation.
A. An action to recover real property from a person in peaceable and adverse possession under title or color of title shall be commenced within three years after the cause of action accrues, and not afterward.
B. "Title" means a regular chain of transfer from or under sovereignty of the soil. "Color of title" means a consecutive chain of such transfer down to the person in possession without being regular, as if one or more of the memorials or muniments is not recorded or not duly recorded or is only in writing, or such like defect as does not extend to or include the want of intrinsic fairness and honesty, or when the party in possession holds the real property by a land warrant or land scrip, with a chain of transfer down to him in possession.
12-526. Real property in adverse possession and use by possessor; ten year limitation; limit of area; fixing of boundaries under duly recorded memorandum of title.
A. A person who has a cause of action for recover of any lands, tenements or hereditaments from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues, and not afterward.
B. The peaceable and adverse possession referred to in subsection A shall not embrace more than one hundred and sixty acres, including the improvements or the number of acres actually enclosed if less than one hundred and sixty acres is so enclosed, but when such adverse possession is taken and held under some written memorandum of title other than a deed which fixes the boundaries of the possessor's claim and is duly recorded, such possession shall be construed to be coextensive with the boundaries specified in such instrument.
In order to actually get title to the land in question, the claimant will have to file a complaint in court in what is know as "an action for quiet title." The burden of proof will fall on your shoulders. Be sure you can present evidence that you have complied with all of the requirements.
Open, Notorious and Visible: Take photos of the sign you put up one first beginning your claim "For Information Concerning This Property Call 000-000). Take photos of people living in, using or improving property. Take them every six months and date them by holding up the front page of a local newspaper in one of them.
Hostile Possession: Make no agreements of any kind with anyone claiming to be the properties true owner. Make them prove they are the rightful owner, then try to buy with no money down.
Continuity of Possession: Your word and yearly photos may be enough. If you are paying the property taxes each year that would be proof. Or have some minor service performed on the property each year. Keep a record of the name, address and bill of the person performing the service.
Holding Period: Record a memorandum indicating you are an adverse possessor. Purchase a small classified ad indicating for information concerning the property they should contact you. Save a copy of that newspaper.
Here is an example of a document filed with a court to begin a quiet title action:
(Name, Address of Party or Attorney)
______________________________
______________________________
______________________________
State Bar No: __________________
(____)______-__________________
Attorney for ____________________
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF _________________
[PLAINTIFF(S) NAMES]
Plaintiffs,
v.
[DEFENDANT(S) NAMES]
and All Persons Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff's Title, or Any Cloud On Plaintiff's Title Thereto and DOES 1 through 10, inclusive, Defendants
____________________________________________
)
)
)
CASE NO:____________
COMPLAINT TO QUIET TITLE
(Adverse Possession)
Plaintiff complains and for causes of action alleges as follow:
1. Plaintiff___________(name) is, and at all times mentioned in this complaint was, a resident of
__________________________ County, California.
2. Defendant __________(name) is, and at all times mentioned in this complaint was, a resident of
__________________________ County, California.
3. Plaintiff does not know the true names of defendants all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiff's title or any cloud on plaintiff's title thereto and DOES 1 through 10, inclusive, and therefore sues them by those fictitious names. The names, capacities and relationships of DOES 1 through 10 will be alleged by amendment to this complaint when they are known.
________________[Optionally, in addition to language in charging allegations that includes fictitiously named defendants: Plaintiff is informed and believes and on that basis alleges that each of the DOE defendants claims, or may claim, some interest in the real property described in paragraph 4 of this complaint.]
4. Plaintiff is the owner by adverse possession of real property located in _____________County, California and more specifically described as : [set forth legal description]
[Add if applicable any street address.]
5. Plaintiff has possession of all real property described in paragraph 4 of this complaint by actual, open, hostile, continuous, and exclusive possession.
6. Plaintiff's possession has been actual, open, hostile, continuous, and exclusive since __________[date], in excess of the 5-year period set forth in Code of Civil Procedure sections 318,319, 321-323.
7. Plaintiff has been in possession of the real property described in paragraph 4 of this complaint by virtue of ______[set forth the type of written instrument, judgment, or decree, such as: a tax deed executed on _____________(date), by
________________(name), and recorded on _______________(date).]
8. Plaintiff has been in continuous possession during the 5-year period described in paragraph 6 of this complaint, adverse to defendants and to all other persons, in support of plaintiff's title to the real property and as curative of any defects in the
___________________[set forth type of document whether written instrument, judgment, or decree, such as: tax deed], or other defects which might have existed with reference to it.
9. Plaintiff has paid all taxes and assessments that have been levied or assessed against the real property described in paragraph 4 of this complaint during the 5-year period.
10. Defendants claim an estate or interest in real property described that is adverse to plaintiff.
WHEREFORE, plaintiff demands judgment against defendants as follows:
1. For judgment that plaintiff is the fee simple owner of all right, title, and interest in a and to the described real property;
2. For judgment that defendants do not have any right, title, estate, or interest in or lien on the described real property;
3. For such further relief as the court may deem proper.
DATED___________________ _____________________________________________
(Signature)
REMEMBER - "Color of Title" denotes that the party claiming adverse possession holds a deed or other document of title; whereas under the concept of claim of title or right, the party claiming adverse possession has no deed or other document of title, but merely asserts ownership. You will be operating under the concept of claim of title or right. This document and accompanying materials are designed to provide authoritative information in regard to the subject matter covered in it. It is for illustration purposes only and presented with the understanding that the author and publisher are not engaged in rendering legal, accounting or other professional opinions. If legal advice or other expert assistance is required, the services of a competent professional should be sought. |
