Sunday, September 21, 2014

Tricky Tacking

Parker v. Potter, 2014 VT 109

By Andrew Delaney

Adverse possession is an odd legal beast. Basically, it’s the law’s way of saying “if you liked it, then you should have put a ring on it.” Quite often, its application turns on what the previous owners of property did or didn’t do. Sometimes, as with a very recent case, it turns on what a previous owner was or wasn’t.

Plaintiffs claimed they’d adversely possessed “several strips of land adjacent to their property: a triangular area used for parking, a small grassy knoll, and a narrow strip of land on the eastern side of the roadway leading to plaintiffs’ house.” So, how’d all this come about? I’m so glad you asked.

Plaintiffs bought a house and some land right before Y2K, about four months after it was foreclosed on by the bank. Before that, the property had been owned by a couple who got divorced. The former wife testified that construction workers had parked in the disputed parking area during the time they owned it. She didn’t deny that she and her husband might have used it.

A former neighbor testified that the couple, as well as the previous owners, had used the disputed parking area since 1987. A contractor who had worked on the property in 1996 testified that he had drove and parked a skid steer in the disputed parking area for two weeks straight and he assumed it belonged to the couple. The neighbor never did anything about it. Nobody lived on the property between July and December 1999.

Plaintiffs have lived there year-round ever since, however. The former owners had left stuff in the disputed grassy knoll (not that grassy knoll) and plaintiffs added their own stuff—they cut trees and stored a boat, installed a park bench, and stacked firewood in the disputed area.

Then defendants looked at a neighboring property, learned that plaintiffs had asserted claims over some areas, and told plaintiffs they’d be buying the neighboring property, and plaintiffs would have to stop using the parking area. Then, after they bought it, defendants kicked it up a notch—they “moved plaintiffs’ boat out of the parking area and put boulders and fencing up to block plaintiffs from using the area.”

This prompted plaintiffs to file a quiet-title action. The trial court ordered defendants to remove the barriers. After trial, the court ruled that plaintiffs had adversely possessed the grassy knoll and the parking area, but not a strip of land next to the roadway. Defendants appealed.

Defendants’ first argument is that the trial court should’ve found that plaintiffs’ predecessors-in-title had abandoned the property when it was foreclosed on. Defendants’ other argument is that the evidence was insufficient to establish adverse possession of the knoll and parking area.

The SCOV tackles the abandonment issue first. In order to establish adverse possession when a party hasn’t been adversely possessing for the entire period, you have to look at the previous property owners’ actions. This is called “tacking.”

Defendants argue that tacking stops with a foreclosure because the property is then abandoned. A foreclosure doesn’t necessarily constitute abandonment as a matter of law. The SCOV cites some 1899 case from Arkansas that more-or-less says this.

Thus, whether abandonment occurred is a mixed question of fact and law. In order for adverse possession to apply, intent is important and is implied from the adverse possessor’s acts; the possession has to be “continuous”—this doesn’t mean constant, just “consistent with the nature and character of the land and its adapted uses.”

Here, the SCOV concludes that the continuous element is met. Abandonment is generally a voluntary relinquishment of a claim. The foreclosure here wasn’t really voluntary. It’s not like the couple foreclosed on wanted to give up the property, you know? The SCOV reasons that the foreclosure “gap was insufficient to show that plaintiffs’ predecessors intended to abandon the disputed areas that they otherwise continuously possessed.”

The bank left the stuff that was there in the disputed areas and the realtor parked in the disputed parking area when he showed the property, so it’s also implied that during that time, the adverse possession continued—then plaintiffs stepped in and continued the possession. So that takes care of that.

Does a sufficiency-of-the-evidence claim ever really work? Here, the SCOV takes a quick look but eventually says the factual findings have adequate support in the record, the findings support the judgment, and they’re not clearly erroneous.

So, a foreclosure doesn’t necessarily interrupt tacking and plaintiffs get to keep “their” parking area and grassy knoll. Fun stuff.

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