Turf War
(Published in The Providence Journal on Feb. 18, 2007)
BARRINGTON, R.I. - When Peter Erickson took down fencing in the woods behind his white Colonial with black shutters, he got a crash course in law that makes it possible for your neighbor to claim ownership of land you believe is yours -- land on which you may even be paying taxes.
Erickson's neighbor, who had put up fencing on land Erickson thought was his, sued for ownership of the property the fence surrounded. Since then, thousands of dollars in legal bills have stacked up, and Erickson has battled to change the law - a battle that is entering a third year at the State House.
Erickson and his wife, Adrianna, moved into their house, on slightly less than an acre at 44 Woodland Rd., in 2001, and a couple of years later wanted more space for their three children to play. A property survey in 2004 showed the fence, put up in 1987 by neighbors William and Maureen Friedman, was on the Ericksons' property, on which the Ericksons paid taxes.
But the Friedmans claimed the 2,500 square feet of woods and marsh was theirs and state law appears to say it is, if they have used it, unchallenged, for more than 10 years. William Friedman said he had thought all those years that he owned the property, including the piece now in dispute, and that his taxes must have included that piece.
Erickson removed the fence about three years ago and soon after the Friedmans' lawyer sent a letter ordering Erickson to replace it. He did not and the Friedmans sued last May.
The law that may have turned the piece of land over to the Friedmans affects people around the country every year. Known as "adverse possession," it provides - in Rhode Island - that those who prove they had open, unchallenged use of land for at least 10 years can get a Superior Court judge to decree it as theirs.
"There are quite a few [such] cases," said Anthony DeSisto, a lawyer in Providence with expertise in land-use issues. Erickson hired DeSisto to handle his case briefly but then shifted to another lawyer.
Rhode Island's 10-year requirement, however, makes it the most lenient in New England.
If Erickson lived in Massachusetts or New Hampshire, his neighbor would need 20 years of open use to try to claim land by adverse possession. In Connecticut, the minimum is 15. In New Jersey, for developed land, it is 30 years and for "uncultivated" land, 60.
Massachusetts also allows property owners to exempt land from adverse possession by registering property with the state Land Court for a $775 filing fee plus costs for a lawyer and title examination. Hawaii also has a land court.
"Anyone who tries to bring a claim against them, after that, it's thrown out," Deborah Patterson, recorder with the Massachusetts Land Court, said of registered property.
Dating back hundreds of years, the adverse possession law was established in part to protect against defects in deeds. Even if a scrivener made a mistake writing property documents, the person putting the land to use could eventually gain official ownership.
Now this tool for guarding against mistakes made with quill pens has taken hold in 21st-century suburbia - and several Rhode Island lawyers said cases are becoming more frequent.
Besides the suit against Erickson, a case in North Kingstown involves a homeowner who says he's long farmed an 11-acre parcel where National Grid wants to put a substation. The land had been bought by Narragansett Electric in 1953, but the homeowner, his brother and father say they have spent tens of thousands of dollars on equipment to grow corn, raise chickens and slaughter steers over some 45 years.
More typical in Rhode Island, lawyers say, are cases involving people asserting ownership to waterfront property while neighbors say they've long used a path across the land to get to a beach.
Or there are cases where the corner of a garage impinges on a neighbor's property or a garden may turn out to have been planted on a neighbor's land.
In Barrington, Erickson and his lawyer believe they will prove that the Friedmans don't have the right to the piece in dispute.
"I think we're confident it doesn't meet all the requirements" for adverse possession, said Alden Harrington, the Ericksons' current lawyer.
The money he's spent on legal fees, Erickson said, was intended to be used for his children, including medical expenses for a family member with a chronic ailment.
"It's exasperating and exhausting," Erickson said.
But for the Friedmans, according to their lawyer, David H. Sholes, it's a matter of upholding property rights and also in part because Erickson sought out media attention, putting the Friedmans in a negative light for simply adhering to the law.
Friedman said there was no plan, "no intent to steal anybody's land." He said that Erickson's disagreement about the boundary means there is a property title flaw, which triggered adverse possession as a common legal means to settle such flaws. "I have the right to the land. And I have to enforce my rights under the law," said Friedman, adding: "He opened the box. I have to close it."
Sholes said the Friedmans are exercising rights available to all, and that Erickson should have done what Sholes recommends all potential purchasers do.
"A prospective homeowner coming to buy a piece of property has a duty called 'due diligence’ to walk through and observe the conditions of the house and to walk the property line and ask questions," Sholes said. "Somebody has to use common sense when they are buying something … He should not be blaming the Friedmans."
But Erickson says adverse possession is hardly a household word and can allow quiet land grabs to take place. When the Ericksons closed on the property in late 2000, he said, a real estate broker, a lawyer, and a representative who has power of attorney for the previous owner were there. No one, he said, ever mentioned the fence or potential for a land dispute. In Rhode Island, real estate closings do not require surveys.
When the Ericksons were with the broker in the home's backyard, the broker said, "It looks like these bushes and trees form a natural boundary line, and we left it at that," Erickson said.
"Of all these people involved - the tens of thousands of dollars in fees - everybody assumes their property is intact in this state, and it's not," said Erickson. He adds: "It's bad public policy is what it is."
Erickson says the law is ripe for updating.
Besides states that require the passage of more time before claims of adverse possession can take hold, several states - outside of the Northeast and mostly in the West - require the person seeking the land to have paid taxes on it. California and Florida require five years and seven years of use, respectively, with the user making tax payments on the disputed land during those periods.
At least four states, however, have the same as or shorter time constraints than Rhode Island: New York and Iowa have 10 years; Nevada has 5 years; and in Arizona 2 years is all that's needed for adverse possession.
The Ericksons are enlisting local legislators to try, for a third year, to change the law. Past bills have sought to increase to 15 and 20 years the time before someone can claim adverse possession. A bill introduced by Sen. David Bates, R-Barrington, last year passed in the Senate but was killed in the House on the session's final day.
This year Bates has submitted a bill - S-144 - which increases the time requirement to 15 years and also requires a person seeking adverse possession to have paid the taxes on the piece all that time.
"I'm not optimistic," Bates said of the bill's chances. "The opposition [last year] was pretty strong in the House."
Rep. Susan Story, R-Barrington, is similarly uncertain of the bill's chances. She said her bill in the House last year, which called for the time increase and tax requirement, did not go anywhere.
Erickson wonders who is stopping the legislation he supports, and why.
Bates' bill failed on a 48 to 14 vote when it got to the House floor last year, with opposition from members of both parties. One who spoke against the bill was Democrat Peter L. Lewiss, a Westerly lawyer, whom Erickson heard led opposition on the House floor. Story recalled Lewiss being a vocal opponent the day of the House vote.
In an interview, Lewiss said he did not spearhead anything. "Adverse possession has been established under English common law. There's no reason to change the provisions which have been established over the centuries," he said.
Story, who supported the bill, said it seemed that on the last day of the session opposition suddenly emerged.
The motion to "recommit" - kill the bill - was made by Rep. Timothy A. Williamson, D-West Warwick, and seconded by Rep. Peter N. Wasylyk, D-Providence, according to the House's daily journal.
Williamson said he did not remember the circumstances of the bill being recommitted. "It could have been something as simple as procedural problems," he said. "Things get recommitted for many reasons." He said he knew of "nothing nefarious" about it.
Williamson said most of his law practice is in Family Court and criminal matters, not land-use.
The Friedmans' lawyer opposes changing the law because, he said, it is important in resolving all sorts of disputes.
"I can't see any justification for the repeal of this law, because this type of law really resolves problems," Sholes said. "This is not the McCoys and the Hatfields.… You have a statute that provides a mechanism that allows a court of law to make the resolution."
Harrington said that from his sense of the state's case law, Rhode Island appears to make it easier than other states for a person to erect something across another property line to gain title to it.
Meanwhile, the Ericksons' case may rest on the words of a woman who died several years ago.
Erickson said William Friedman had asked the former owner of the Ericksons' home, Alice Bain, if he could put up the fence to allow a dog or dogs to run free. The implication is that Friedman acknowledged it was not his property in seeking her approval to use it.
"On the facts you have provided me, it appears that the Friedmans knew from the beginning where the actual boundaries were and built the fences with the permission of Ms. Bain, knowing that they were building the fences on her property," Harrington wrote in a letter last year to Erickson. "They did not occupy the property under a claim of right and therefore cannot establish one of the elements of adverse possession."
But Friedman said of Erickson's claim about Bain: "I deny that. No conversations with Alice Bain" took place on the matter.
Sholes replied: "That's what they are alleging. Now go prove it."
Bain's son declined comment.
"At the time the defendants purchased the premises [from Bain's estate] they knew or should have known of the existence of the fence erected and maintained by the plaintiffs," the Friedmans' suit says.
According to their suit, the Friedmans are seeking to clear the title to the land and $3,500 for the fence's value and damages. The two sides are currently exchanging documents. A court date has yet to be set.
