Adverse possession: another word for land piracy

It’s a common story. Local thieves victimizing absentee owners. Millions of dollars in timber, mineral, and land assets are at risk, and the victims are often too far away to do anything but get angry, while their land and property are stolen right out from under them.

A black preacher tries to track down possible timber theft on his property. He’s 400 miles away from land that he and his cousins inherited from their grandfather and he hasn’t seen the land in years. All he knows is that it is in Neshoba County Mississippi, a part of the country, which has run red with black blood for centuries, particularly during the height of the Race Wars of the 1960s and 70s.

He and his father, along with millions of black families, sought broader opportunity in the North, after coming to the understanding that there was no future for them in farming, if they wanted to make a decent living. And, like many families before them, they came north, seeking opportunity in education, the ministry and in the great factories of Chicago, Milwaukee, Detroit and St. Louis.

In the last century, many black landowners, tiring of the racial outrages and weary of living in a war zone, took their families and headed north. In the process of the Great Migration north, black families left billions of dollars of real estate and farm property to sit idle. While many paid taxes year after year and hoped the land thieves would keep their hands off the land, such was often not the case.

Many of these families, now and then, depended on friends, neighbors and relatives to keep them apprised of what is happening to their property. The calls have fired up the telephone wires for generations, as the watchers in the South call their Northern kin with reports of trespasses, illegal planting, and criminal timber harvesting.

Yet, what could they do about the theft? The reason many of them left in the first place was because justice was a foreign commodity for blacks in the South. Now, if they thought they’d receive little justice while they lived in the South, they most certainly didn’t think local authorities would uphold their property rights if they were hundreds of miles away.

And so it is that over the years, black landowners have lost land due to a variety of factors, including loss of deeds, forgery of deeds by land thieves, conspiracies by local property pirates, squabbles between heirs, not to mention the inability to pay property taxes on the land. Poor estate planning has a role in land loss as well.

According to a recent article by Krista Collins in the McClatchy Newspapers, “Experts say that poor estate planning plays a role in many cases of black land loss. But they also say the loss is inextricably linked to discrimination.” (2-26-08)

Many African American families hold farmland worth tens of thousands of dollars, but, due to poor estate managing skills, and the inability to come to an agreement on the disposition of the property, they lose the land in tax sales or simply to well-connected white squatters.

Millions of acres of black owned heir’s property hasn’t generated a dime’s worth of income in either rent, crop sales, or land sales for their black owners. Yet, this property continues to be a gold mine for white squatters who bank billions of dollars in crop profits, build barns on the property, till its fields and make a nice living from land they illegally use.

The preacher and his cousins, along with several other absentee black landowners continue to lose revenue from their land. Too far away to secure their property, they remain vulnerable to local acquaintances who may or may not be double dealing and lining their pockets at the expense of their absent friends and relatives.

Many of the so-called squatters are well versed in a legal concept called “adverse possession.” While many believe that land thieves in the Deep South mainly use “adverse possession”, the concept is not strictly a “southern” one. Take a look at this definition from Massachusetts:
In Massachusetts you must possess the property being claimed, continuously for 20 years (Mass. Gen. L. ch. 260, sec.21) To meet the requirements for adverse possession you must also show that:
1) You were the exclusive possessor and actually entered the property.
2) Your possession must be open and notorious--your possession must be seen. The possession must be appropriate to the type, size and use of the land. Enclosures, houses, cabins, payment of taxes all help establish your claim. The general idea is to give the owner reasonable notice that you are in possession and give him the opportunity to eject you.
3) Your possession must be adverse to the owners claim, in other words without the owners consent. If the owner has given permission for you to be on the property you can't claim the property adversely.
4) Your possession must be continuous (for 20 years). If your entry was only occasional you may be deemed a trespasser and not be able to claim adverse possession. However, certain seasonal or intermittent uses satisfy the continuous element if the average owner of a particular piece of property would use it in that manner (e.g. a summer home). (Konstantine Kyros, Esq., “Adverse Possession: Basics”)

Much of the problem lies at the power of the white community in the Deep South. Many blacks were lynched over land; others were chased off their land by the threat of lynching. Hence, even when they were occupying their land, and in physical possession of the land, their title and deed to the property was not guaranteed.

Many of those who now are in an economic position strong enough to hire attorneys and contest illegal occupation of their grandparent’s or parent’s property often run headlong into the “adverse possession” doctrine. That is, the land thieves have occupied the land for so long, that under adverse possession, they now own the land.

One thief lands on the property, squats on it for 15 years, then hands the property over to a friend or relative, who continues the illegal possession—until it becomes a legal “adverse possession.” As Kyros notes:
Continuity can also be established by adding together or "tacking" successive adverse possessors. For example if A possesses the land for 15 years and then gives it to B who possesses it for 5 years, B may then claim title by adverse possession by tacking the two claims. (Ibid)

In essence, if you sit on stolen land long enough, the law in many states considers you to be the rightful owner. For land thieves, time is on their side. Those who left the land or were chased off generations ago often have neither the time, nor resources to travel 500 miles back down south and battle with often well-connected land thieves.

In a legal paper in the Georgetown Law Journal, Jeffrey Evans Stake notes that the law provides for the ejection of an owner of record by an adverse possessor (squatter). Under current law, in a tradition in English common law going back centuries, if a squatter occupies a piece of land long enough, the original owner’s title to the land can be transferred to the squatter by right of adverse possession.

Statutes limiting the time for bringing an action to recover possession of land-an action in ejectment'-were first passed centuries ago in England" and exist today in all American states." By their terms, most statutes of limitation merely terminate the record owner's access to judicial assistance in recovering possession of his land. The doctrine of adverse possession takes these statutes one conceptual step further by providing that the adverse possessor (AP) actually gains legal title, displacing the record owner (RO). 13 This result does not flow ineluctably from the language of the statutes.14 Judges could have read the statutes as merely granting to AP an immunity from suit by RO.15 But the courts did not stop with immunity; AP gains complete ownership and RO's rights are extinguished. The doctrine also wipes out other claims RO might have had against AP for recent wrongs she has committed, such as the taking of timber from the land. (Jeffrey Evans Stake, “The Uneasy Case for Adverse Possession”, Georgetown Law Review, August, 2001)

There are many ways that land thieves lay a case for adverse possession of property. One of them is by paying taxes on the property.
To establish title by adverse possession, AP [adverse possessor] must usually prove that her possession was actual, hostile, open and notorious, exclusive, and continuous for the period of the statute of limitations.22 Color of title and payment of taxes can also be elements in some cases. (Ibid)

What this appears to mean is that if the often white land thieves take control of the land in an open, blatant manner, and if the true owners to not take legal steps to kick them off the land, then the adverse possessor gains title to the land he trespassed on, illegally used, and immorally profited from. Hence, in a legal climate hostile to black land ownership, white land pirates had the upper hand by tradition, social connections, as well as by legal and political connections.

A person claiming title by adverse possession must establish intent to maintain physical occupancy and control of the land in question. An entry onto the land of another is a mere trespass if done without claim of right, but it is an ouster if made with the necessary intent.35 Intent will be noted again below in connection with the hostile element and the Maine doctrine.36 (Ibid)

Ultimately, when it comes to property, you just can’t hold onto it and think, “because you own it, it’s yours.” You must be diligent and vigilant in your land ownership, taking care to protect what you own.

According to one legal expert, the registered owner of the land has to keep an eye on his or her land, and make sure that nobody is squatting or trespassing on the land. You just can’t let land lie around like an old shoe and ignore it. Property rights only exist if they are exercised. Ultimately, “To avoid losing his land, RO the (registered owners) must expend time and effort in the search for possessors.” (Ibid)