Analyzing Adverse Possession Laws and the Marketable Record Title Act in the States East of the Mississippi River

1

Analyzing Adverse Possession Laws and the Marketable Record Title Act

in the States East of the Mississippi River

Adam Leitman Bailey, P.C.New York Real Estate Attorneys

www.alblawfirm.com

2

Analyzing Adverse

Possession Laws and

Cases of the States

East of the

Mississippi River © Adam Leitman Bailey, P.C. 2015


3

© Adam Leitman Bailey, P.C. 2015


4



5



6



7



8



9



10







16

Historical Photograph

of 63 East 92nd Street

Front Areaway





19


20


Adverse Possession Elements

21



22



23


Requisite Time Period of Possession

24


Requisite Time Period of Possession

Adverse Possession Defined:

New York (Old Law)

To establish adverse possession, the following

five elements must be proved: Possession must

be:

1. Hostile and under a claim of right

2. Actual

3. Open and notorious

4. Exclusive

5. Continuous for the required period (10 years) ▫ Belotti v. Bickhardt, 228 N.Y. 296, 302 (N.Y. 1920)

25



Claim of Title

Under the old law, knowledge that rightful title belongs to another did not defeat a claim of right.

Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)

Claim of RightNY CLS RPAPL § 501(3)

Under the new law, a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property

owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register

of the county, of the county where such real property is situated, and located by reasonable means.

26

Claim of Title (Old Law) vs.

Claim of Right (New Law)



The statute went further to limit the kinds of acts which rise to a “manner that would give the owner a cause of action for ejectment” by specifically excluding certain common actions as “de minimus” and “non adverse”

1. “…the existence of de minimus [de minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.”

2. “…the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse.”

▫ NY CLS RPAPL § 543

27


Actual Possession Under the New Law“De minimus encroachments”


Actual Possession Under the New Law

“De minimus encroachments”

The 2008 Amendments more strictly defined the type of possession sufficient to uphold a claim of adverse

possession.

A person or entity is an "adverse possessor" of real property when the person or entity occupies real

property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause

of action for ejectment.• RPAPL 501(1)

28



29

Actual and Exclusive

Possession



• As the Pennsylvania Supreme Court put it:

• [N]othing short of an actual possession, permanently

continued, will take away from the owner the

possession which the law attaches to the legal title;

temporary acts on the land, without an intention to

seat and occupy it for residence and cultivation or

other permanent use consistent with the nature of the

property, are not the actual possession required.

• Parks v. Pennsylvania R. Co., 152 A. 682, 684

(Pa. 1934).

30

Open and Notorious Use



• Open and notorious use means use

that is so apparent that it puts the true

owner on notice of the adverse claim. • See Appalachian Regional Healthcare, Inc.v. Royal Crown Bottling Co., Inc, 824

S.W.2d 878, 880 (Ky. 1992) (stating that it is ìlegal owners knowledge, either

actual or imputable, of anothers possession of lands that affects ownershipî).

Kaufman v. Geisken Enters., Ltd.

• In Kaufman v. Geisken Enters., Ltd., the Court of

Appeals of Ohio found that using land “for

recreation, planted and pruned trees, cultivated

asparagus, parked cars, ran a go-cart, stored

firewood, piled debris, placed burn barrels on

the property, and kept the property generally

attractive according to neighborhood standards”

was enough to put a reasonable person on

notice of possessor’s claim.

31



Apperson v. White

• In Apperson v. White, the Court of Appeals of

Mississippi determined that building a fence and

planting corn were clear and visible indicators of

occupation that should have put a reasonably

vigilant person on notice of said occupation. ▫ Kaufman v. Geisken Enters., Ltd., 2003-Ohio-1027, *8 (March 7, 2003).

▫ Apperson v. White, 950 So.2d 1113, 1118 (Miss. Ct. App. 2007).

32



Continuous Use

• In Stellar v. David, defendants claimed adverse

possession over a marshland defendants had

seasonally hunted, trapped, sharecropped, and

annually paid taxes on for forty years. The

Delaware Superior Court found that using the

land for hunting, trapping, and farming was

consistent with use of a marshland and

defendant’s use was therefore sufficiently

continuous

33



Continuous Use

• In Apperson v. White, the Court of Appeals of

Mississippi found that building a fence, planting

crops, and continually harvesting timber on

vacant land were consistent with acts of an

owner of similar property and therefore satisfied

the continuous use element. ▫ Stellar v. David, 257 A.2d 391, 394 (Del. Super. Ct. 1969). Id. at 395. Apperson v.

White, 950 So.2d at 1117.

34



Hostile

Objective

▫ Most states east of the Mississippi River

interpret hostile from an objective

standpoint, requiring neither a good faith

belief of ownership nor a bad faith desire

to steal be demonstrated.

35



Hostile

• The claimant must act as if he was the true owner, no matter if he knew that he was not or actually believed that he was. Connelly v. Buckingham, 136 Mich App 462, 468 (1984).▫ See MacDonough-Webster Lodge No.26 v. Wells, 175 Vt. 382, 394 (2003) (holding that

a person can gain title over property by adverse possession without showing an intent to take another’s land provided that the claimant acts with the intent to exclude all others from possession).

36



Good Faith

• To claim adverse possession in Georgia, a claimant must show “possession that is in the right of the party asserting possession and not another.” That means that “[n]o prescription runs in favor of one who took possession of land knowing that it did not belong to him.” In other words, a party cannot claim adverse possession over property they know belongs to someone else. Kelley v. Randolph, 295 Ga. 721, 722 (2014).

• Id. at 723 n.1 (citing Ellis v. Dasher, 101 Ga. 5, 9–10 (1897)).

37



Hostile

Bad Faith

• Historically, South Carolina required bad faith in all instances. Claimants had to know they were possessing property owned by another in order to satisfy the hostility requirement. South Carolina has recently changed course though. It now only requires a showing of an objective intent to own that is adverse to the true owner’s interest. See Lusk v. Callham. 287 S.C. 459, 461 (Ct. App.

1986). See Perry v. Heirs at Law and Distributees of Gadsden, 316 S.C. 224 (1994).

• See Jones v. Leagan, 384 S.C. 1, 13-14 (Ct. App. 2009)

38



Hostile

Permissive Use

• In Grace v. Koch, the true owner granted claimant permission to mow the grass on the disputed strip of land. When the true owner later objected to claimant laying gravel down on the strip, claimant asserted adverse possession. The Supreme Court of Ohio rejected this claim, finding that the party had permission to use the strip and therefore use was not adverse.

39



Disability Extends the

Time-Period

40



Hartman v. Goldman


The First Case Using the New Law in New York

42


43


44


45


46


Walling v. Pryzbylo


Seminal case that prompted the legislature to amend the adverse possession statute and define a

“claim of right.”

In Walling v. Przybylo, the Wallings and the Przybylosowned adjoining properties. The Wallings began using a

portion of the Przybylos’ property as their own.

• Bulldozed and deposited fill and topsoil on disputed property

• Dug a trench and installed pipes for the purpose of carrying water to and under the disputed parcel, ultimately discharging the water in and over the disputed parcel.

• Constructed an underground dog wire fence to enclose their dog and continuously mowed, graded, raked, planted, and watered the grassy area in dispute.

• Installed 69 feet of four-inch pipe which ran underground but surfaced at the end of the pipeline.

• Affixed a birdhouse on a post approximately 10 feet long stuck in a hole dug by the Wallings near the northwesterly corner of the grassy part of the disputed territory.

• Since 1992, the post and birdhouse have remained in place. ▫ Walling v. Przybylo, 7 N.Y.3d 228, 230-231 (N.Y. 2006)

◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at (2009).

48


In 2004, the Przybylos discovered that they had title to the portion of the land that the Wallings had been

using. The Wallings filed suit to quiet title. The Przybylos attempted to prove that Wallings knew they

did not own the disputed parcel.

Holding: The Court of Appeals held for the Wallingsand declared that “actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor.”

▫ Walling v. Przybylo, 7 N.Y.3d 228 (N.Y. 2006)◦ See Adam Leitman Bailey & John M. Desiderio, Adverse Possession Changes

Make Result Less Certain, 2009 The New York L. J., Feb. 11, 2009 at (2009).

49


50


51


52


53


54


55


Marketable Record

Title Acts


56


Marketable Record

Title Acts


• Marketable record title statutes are statutes of limitations in that they require a demand to title to property to be asserted within a reasonable time after accrual of a title issue.

57



• Marketable record title statutes simplify and facilitate land title transactions by allowing persons to rely on record title. When no other person files a notice of claim during the relevant statute of limitations or otherwise interrupts the chain of title a claim based on any title transaction prior to the start date is null and void and thus extinguished.

58


Root of Title


• Marketable record title refers to a recorded interest in land that extinguishes all claims and interest in the land that existed prior to the effective date of root of title. Root of title is the recorded title transaction that either creates the interest in the person claiming marketable record title or creates the interest in some other person through whom the claimant claims to have obtained a vested interest.

• See Conn. Gen. Stat. Ann. ß 4733b (West 1978); Fla.Stat. Ann. ß 712.01(2) (West 2000); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-2-6 (West 2002); Mich. Comp. Laws Ann. ß 565.103 (West 1997); N.C. Gen. Stat ß 47B2 (West 1981); Ohio Rev. Code Ann. ß 5301.47(e) (West 1961); R.I. Gen. Laws ß 34-13.1-1(a) (2011); Vt. Stat. Ann. tit.27 ß 602 (West 1971); Wis. Stat. Ann. ß 893.33 (2) (West 2013).

59



• To claim marketable record title to land, the claimant must have an unbroken chain of title to the land dating back to the effective date of root of title and such date must be some specified amount of time prior to the date at which marketability is being determined. A person possesses an unbroken chain of title if records show that no title transaction purporting to divest claimant of his interest or create a competing interest in the land has occurred since the effective date of root of title. If such can be shown, the claimant is deemed to hold title to the land free and clear of all interests except those exceptions expressly enumerated by statute.

• See Conn. Gen. Stat. Ann. ß 4733c (West 1979); Fla.Stat. Ann. ß 712.02 (West 1997); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-3-1 (West 2002);

Mich. Comp. Laws Ann. ß 565.101 (West 1997); N.C. Gen. Stat ß 47B2 (West 1981); Ohio Rev. Code Ann. ß 5301.48 (West 1961); R.I. Gen. Laws ß 34-13.1-2 (1995); Vt. Stat. Ann. tit.27 ß 601 (West 1969); Wis. Stat. Ann. ß 893.33 (2) (West 2013).

• See Conn. Gen. Stat. Ann. ß 4733c (West 1979); Fla.Stat. Ann. ß 712.02 (West 1997); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-3-1 (West 2002); Mich. Comp. Laws Ann. ß 565.102 (West 1997); N.C. Gen. Stat ß 47B2 (West 1981); Ohio Rev. Code Ann. ß 5301.48 (West 1961); R.I. Gen. Laws ß 34-13.1-2 (1995); Vt. Stat. Ann. tit.27 ß 602 (West 1971); Wis. Stat. Ann. ß 893.33 (2) (West 2013).

60



• The one significant way in which these ten states differ in how they define marketable record title is in in how long prior to the date at which marketability is being determined each state’s respective Marketable Record Title Act mandates the effective date of root of title must be.

• See Conn. Gen. Stat. Ann. ß 4733c (West 1979); Fla.Stat. Ann. ß 712.02 (West 1997); 735 Ill.

Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-3-1 (West 2002); Mich. Comp. Laws Ann. ß 565.101 (West 1997); N.C. Gen. Stat ß 47B2 (West 1981); Ohio Rev. Code Ann. ß 5301.48 (West 1961); R.I. Gen. Laws ß 34-13.1-2 (1995); Vt. Stat. Ann. tit.27 ß 602 (West 1971); Wis. Stat. Ann. ß 893.33 (2) (West 2013).

• See Mich. Comp. Laws Ann. ß 565.102 (West 1997).

61



• These time periods range from thirty years (Florida, North Carolina, and Wisconsin), to forty years (Connecticut, Illinois, Michigan, Ohio, Rhode Island, and Vermont), to fifty years (Indiana). Michigan’s MRTA, additionally, creates a separate category for mineral interests in land for which an unbroken chain of title for twenty years is required to establish marketable record title.

• See Conn. Gen. Stat. Ann. ß 4733c (West 1979); Fla.Stat. Ann. ß 712.02 (West 1997); 735 Ill.

Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-3-1 (West 2002); Mich. Comp. Laws Ann. ß 565.101 (West 1997); N.C. Gen. Stat ß 47B2 (West 1981); Ohio Rev. Code Ann. ß 5301.48 (West 1961); R.I. Gen. Laws ß 34-13.1-2 (1995); Vt. Stat. Ann. tit.27 ß 602 (West 1971); Wis. Stat. Ann. ß 893.33 (2) (West 2013).

• See Mich. Comp. Laws Ann. ß 565.102 (West 1997).

62



• Assume X owns Blackacre in fee simple absolute and marketability is being determined in 2015. The record shows the following transactions, each in fee simple: A to B (1960), B to C (1990), and C to X (2000). Therefore, X’s root of title is the conveyance from A to B in 1960, that being the earliest conveyance of record occurring at least 30 years prior to the time marketability is being determined. In other words, X is claiming a vested interest in Blackacre through his predecessors in title. The conveyances from A to B to C to X represent an unbroken chain of title because the conveyance from A to B conveys the same interest that is being claimed by X—fee simple—with no competing interests in the interim.

63



• Owners of an interest in land not preserved by one of the many enumerated exceptions and limitations are not completely out of options. MRTAs in the states east of the Mississippi allow a party with an interest in real property to preserve that interest by recording a notice of claim, also called a notice of intent, following the effective date of root of title. See

Conn. Gen. Stat. Ann. ß 47-33f (West 1979); Fla. Stat. Ann. ß 712.05 (West 2014); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-4-1 (West 2002); Mich. Comp. Laws ß 565.103 (West 1997); N.C. Gen. Stat. ß47B-4 (West 1973); Ohio Rev. Code ß 5301.51 (West 1988); R.I. Gen. Laws ß 34-13.1-5 (West 1995); Vt. Stat. Ann. tit. 27 ß 603 (West 1993); Wis. Stat. ß 893.33 (West 2013).

• See Conn. Gen. Stat. Ann. ß 47-33g (West 1979); Fla. Stat. Ann. ß 712.06 (West 2010); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-4-2 (West 2002); Mich. Comp. Laws ß 565.105 (West 1997); N.C. Gen. Stat. ß 47B-4 (West 1973); Ohio Rev. Code ß 5301.52 (West 1988); R.I. Gen. Laws ß 34-13.1-6 (West 1995); Vt. Stat. Ann. tit. 27 ß 605 (West 1993); Wis. Stat. ß 893.33 (West 2013).

Notice of Claim

64



• To be effective, such notice must set forth in particular terms the nature of the claim, listing the contact information of the interested parties and providing a full and accurate description of the land and interest at issue, and be recorded in the county in which the land is located.

• See Conn. Gen. Stat. Ann. ß 47-33f (West 1979); Fla. Stat. Ann. ß 712.05 (West 2014); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-4-1 (West 2002); Mich. Comp. Laws ß 565.103 (West 1997); N.C. Gen. Stat. ß 47B-4 (West 1973); Ohio Rev. Code ß 5301.51 (West 1988); R.I. Gen. Laws ß 34-13.1-5 (West 1995); Vt. Stat. Ann. tit. 27 ß 603 (West 1993); Wis. Stat. ß 893.33 (West 2013).

• See Conn. Gen. Stat. Ann. ß 47-33g (West 1979); Fla. Stat. Ann. ß 712.06 (West 2010); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code ß 32-20-4-2 (West 2002); Mich. Comp. Laws ß 565.105 (West 1997); N.C. Gen. Stat. ß 47B-4 (West 1973); Ohio Rev. Code ß 5301.52 (West 1988); R.I. Gen. Laws ß 34-13.1-6 (West 1995); Vt. Stat. Ann. tit. 27 ß 605 (West 1993); Wis. Stat. ß 893.33 (West 2013).

Notice of Claim

65



• The ability to file a notice of claim to preserve an interest from being extinguished by an MRTA is not typically an unfettered right. The MRTAs of Connecticut, Indiana, Michigan, and Rhode Island include a prohibition on filing a notice of claim for purposes of slandering title and allow for the recovery of damages and/or attorneys’ fees if a property owner successfully establishes such slander. Slander of title is generally defined as “[a] false statement…that casts doubt on another person's ownership of property and thereby causing damage or loss.”

• See Conn. Gen. Stat ß 47-33j (West 1979); Ind. Code ß 32-20-5-1 (West 2015); Mich. Comp. Laws ß 565.108 (West 1970); R.I. Gen. Laws ß 34-13.1-9 (West 1995).

• SLANDER OF TITLE, Black's Law Dictionary (10th ed. 2014).

Slander of Title and

Fictitious Claims

66



• In Carrozza v. Voccola, the Supreme Court of Rhode Island held that to assert a claim for slander of title, the claimant must prove that the alleged wrongdoer maliciously made a false statement about claimant’s interest in real property and that claimant suffered financial harm as a result.

• Carrozza v. Voccola, 90 A.3d 142, 15152 (R.I. 2014).

• Id. at 14649.

• Id. at 154.

67



• In that case, a father filed notices of lis pendensagainst property in his deceased son’s name and the executor of son’s estate was subsequently prevented from selling the property due to an inability to provide clear and marketable title. The court, based on the father’s own admission that he did not file the lis pendens to protect a legitimate property interest but rather to collect on a debt he thought owned to him, found that the requisite malice existed and accepted the executor’s slander of title claim.

• Carrozza v. Voccola, 90 A.3d 142, 15152 (R.I. 2014).

• Id. at 14649.

• Id. at 154.

68



• In CHFA—Small Properties, Inc. v. Elazazy, plaintiffs, holder of two leasehold mortgages that mortgagor had defaulted on, commenced a foreclosure action, received a judgment of foreclosure, and brought summary proceedings against defendant lessees. Plaintiff subsequently sought to sell its interest in the property, but the sale fell through due to an inability to convey marketable title after defendants filed a notice of claim to an interest in the property in the country records.

• The Court of Appeals of Connecticut denied plaintiff’s slander of title claim, finding that although defendants did not actually have a legal interest in the property, defendants honestly believed that they did and therefore the false claim was not made with malicious intent.

• CHFASmall Properties, Inc. v. Elazazy, 157 Conn. App. 1, 13(2015).

• Id. at 3. • Id. at 4,10.

69



• The Court of Appeals of Connecticut denied plaintiff’s slander of title claim, finding that although defendants did not actually have a legal interest in the property, defendants honestly believed that they did and therefore the false claim was not made with malicious intent.

• CHFASmall Properties, Inc. v. Elazazy, 157 Conn. App. 1, 13(2015).

• Id. at 3.

• Id. at 4,10.

70



• The MRTAs of Florida, North Carolina, and Ohio do not contain a provision that expressly prohibits claims made with the purpose of slandering title; however, they do contain a general ban against any and all false or fictitious claims. In such cases, the same consequences befall a wrongdoer as they do in the specific case of slander of title: the claimant will be able to recover damages and/or attorneys’ fees from the wrongdoer if the claimant successfully establishes that a false claim has been filed that caused the claimant harm.

• Fla. Stat. ß 712.08 (West 1997); N.C. Gen. Stat. ß 47B-6 (West 1973); Ohio Rev. Code

ß 5301.52(D) (West 1988).

71



While each state that has enacted a Marketable Record Title Act has its own “exceptions”, interests that are not extinguished by the Act and a purchaser must take subject to, there are a number of general exceptions that are common amongst the varying state statutes.

Exceptions

72



• A subsequent purchaser takes subject to all interests stated with sufficient specificity subsequent to the root of title.

• Most statutes also contain a provision requiring that preexisting interests referred to in the chain of title be referred to with specificity, rather than general language such as “subject to existing encumbrances.” These states require that the interest be expressly referred to by its particular location in another document.

• See Conn. Gen. Stat. Ann. ß 4733d; Fla.Stat. Ann. ß 712.03; Ind. Code ß 32-20-3-2; Mich. Comp. Laws Ann. ß565.101; N.C. Gen. Stat ß 47B3; Ohio Rev. Code Ann. ß 5301.49; R.I. Gen. Laws ß 34-13.1-3; Vt. Stat. Ann. tit.27 ß601; Wis. Stat. Ann. ß 893.33 (2) (West 2013).

Muniments

73



• For instance, by referencing a previous deed and the date on which and location where it was recorded. An indefinite reference does not place the referred-to document within the chain of title and therefore would not preserve the interest to which reference is made.

• See Conn. Gen. Stat. ß 47-33d(1); Fla. Stat. ß 712.03(1); Ind. Code ß 32-20-4-2(a); Mich. Comp. Laws ß 565.105;

N.C. Gen. Stat. ß 47B-3(1); Ohio Rev. Code ß 5301.49(A); R.I. Gen. Laws ß 34-13.1-3(1); Wis. Stat. ß 893.33(2).

74



• In Florida Dep't of Transp. v. Clipper Bay Investments, LLC, plaintiff sought to quiet title under the MRTA of Florida to a parcel of land. Defendant countered that the parcel at issue was part of its easement as specifically disclosed in a document within the chain of title and was thus exempt from being extinguished under the MRTA.The Supreme Court of Florida agreed with defendant, finding that defendant’s interests had been referenced with sufficient specificity to preserve its interests.

• The court held that a lease, recorded subsequent to the effective date of root of title, that made specific reference to the date the easement was recorded and the book and page numbers in the records of a particular county was enough to provide notice to plaintiff.

• Florida Dep't of Transp. v. Clipper Bay Investments, LLC, 160 So. 3d 858 (Fla. 2015).• Id.

75



• Another common exception found throughout the states is that the MRTA does not affect any right or interest of the United States or the state that enacted the statute. State’s preserve any right to land it may have that allows it to facilitate a public utility, such as a highway. Some states extend this immunity to public service companies and natural gas companies.

• See Conn. Gen. Stat. ß 47-33d(5); Fla. Stat. ß 712.03(5); 735 Ill. Comp. Stat. 5/13-111; Mich. Comp. Laws Ann. ß 565.104; N.C. Gen. Stat. Ann. ß 47B-3(9); Ohio Rev. Code Ann. ß5301.53(G); R.I. Gen. Laws Ann. ß34-13.1-7; Vt. Stat. Ann. tit. 27 ß 605(b; Wis. Stat. ß 893.33(5).

• See Conn. Gen. Stat. Ann. ß 47-33d (West 1995); 735 Ill. Comp. Stat. 5/13-120; R.I. Gen. laws Ann. ß 34-13.1-3 (West 1998).

Government Interests in Property

76



• Most MRTAs do not affect or extinguish the rights of any person in actual possession of land. For example, under Indiana’s MRTA, marketable record title is subject to all interests preserved by “possession by the same owner continuously for at least fifty (50) years.” This exception is intended to prevent a purchaser from taking property free from an actual possessor who has been in clear and continuous use. A purchaser cannot rely on the Marketable Recording Title Act to avoid taking property subject to an interest that they reasonably should be aware.

• See Conn. Gen. Stat. Ann. ß 47-33d(2) (West 1995); Fla. Stat. Ann. ß 712.03(3) (West 2010); Ind. Code Ann. ß 32-20-3-2(2)(B) (West 2011); N.C. Gen. Stat. Ann. ß 47B-3(3) (West 1995); Ohio Rev. Code Ann. ß5301.49(B) (West 1963); R.I. Gen. laws Ann. ß 34-13.1-3(2) (West 1998).

• Ind. Code Ann. ß 32-20-3-2(2)(B) (West 2011).

Possession

77



• As demonstrated by the language of the Indiana Marketable Record Title Act states often specify a mandatory length of time of possession for the exception to apply. In marketable record title does not affect or extinguish the right of “any person in possession of lands, so long as such person is in such possession.” North Carolina’s Marketable Record Title Act contains similar language to that of Florida.

• See Conn. Gen. Stat. Ann. ß 47-33d(2) (West 1995); Ind. Code Ann. ß 32-20-3-2(2)(B) (West 2011); Ohio Rev.

Code Ann. ß 5301.49(B) (West 1963); R.I. Gen. laws Ann. ß 34-13.1-3(2) (West 1998).

• Fla. Stat. Ann. ß 712.03(3) (West 2010).

• See N.C. Gen. Stat. Ann. ß 47B-3(3) (West 1995)

Possession

78



• The issue of what constitutes “possession” has been raised in court. In Department of Transp. v. Mid-Peninsula Realty Inv. Group, LLC, the Florida Court of Appeals determined that where the statute did not define “possession”, the term must be given its plain and ordinary meaning. Furthermore, the court defined “possession” as “visible power or control over something, as distinct from lawful ownership; holding or occupancy; control or occupancy.”

• Dep't of Transp. v. Mid-Peninsula Realty Inv. Grp., LLC, 171 So.3d 771, 77576 (Fla. Dist. Ct. App. July 29, 2015).

• Id. at 776.

79



• In Garriot v. Peters, claimant asserted possession over an undeveloped wooded tract it had rented out to farmers, sold timber off, hunted on, picked berries on, drove vehicles on, and built a fence on. The Court of Appeals of Indiana found that claimant’s use, particularly the building of the fence, the leasing to farmers, and execution of timber contracts, demonstrated sufficient evidence of control to amount to dominion over the land.

• Garriot v. Peters, 878 N.E.2d 431, 440 (Ind. Ct. App. 2007).

• Id. at 441.

80



• Marketable record title is often subject to an interest in land arising by adverse possession. If a person can demonstrate a period of adverse possession, as defined by each state’s respective adverse possession statute, which occurs either in whole or in part following the effective root of title date, a subsequent purchaser must take subject to the adverse possession interest.

• See Conn. Gen. Stat. Ann. ß 47-33d(3) (West 1995); 735 Ill. Comp. Stat. Ann. 5/13-118 (West 1983); Ind. Code Ann. ß 32-

20-3-2(3)(West 2011); Ohio Rev. Code Ann. ß 5301.49(C) (West 1963); R.I. Gen. laws Ann. ß 34-13.1-3(3) (West 1998); Vt. Stat. Ann. tit. 27 ß 604(a)(1) (West 2011);

Adverse Possession

81



• One exception common to Florida, Indiana, North Carolina, Vermont, and Wisconsin and absent in the Marketable Record Title Act of the other six states is that is that marketable title also remains subject to restrictive covenants that encumber the property. Of the MRTAs of these four states, only Wisconsin creates an exception for all forms of covenants restricting the use of real estate. The other three MRTA limited the exception to specific forms of covenants.

• See Fla. Stat. ßß 712.03; Ind. Code ß 32-20-3-2(6); N.C. Gen. Stat. ß 47B-3(13); Vt. stat. Ann. tit. 27 ß 610; Wis.

Stat. ß 893.33(6).• See Wis. Stat. ß 893.33(6).

Restrictive Covenants

82



• Florida and North Carolina’s statutes specify that the exception only applies to residential covenants or to covenants made by residential organizations. This was a particular issue in Florida, where the passage of that state’s Marketable Record Title Act left many homeowners’ associations worried that covenants for certain housing developments—governing aspects like uniformity in appearance—would no longer remain binding after the expiration of the statutory time period.

• See Fla. Stat. ß 712.05; N.C. Gen. Stat. ß 47B-3.

83



84



85



• Though the law allowed individuals to file notices of claim to preserve interests homeowners associations did not have that same ability. The law was later amended to close that loophole, although interests which expired before the amendment of the act were not retroactively revived due to concerns of an unconstitutional taking. However, legislation was passed to encourage the “revitalization” of those lapsed covenants.

• Fla. Stat. ß 712.05

• Fla. Stat. ßß 720.403720.407.

86



• Many disputes resulting from MRTAs relate to easements. Easements are rights over another property owner’s land either expressly granted or created by law through factors such as use, implication, and necessity.

Easements

87



• One example of a state specific exception is that of county tax records. This exception is unique to Florida and North Carolina.Under this exception, a purchaser takes subject to the interests of any person who is listed as the owner of the property on the tax records of the county where the property is located at the time marketability is being established.

• Id. See also N.C. Gen. Stat. Ann. ß 47B-3(4).


Tax Records

88



• In practice, this exception requires a title searcher to search the tax records of the county the land resides in to determine whether anyone has an interest in the land in addition to the title record. The required search period is limited in the same or similar way as the title search is, however, and thus is not overly burdensome.



Tax Records

89



• Almost all of the MRTAs contain language stating that “disability or lack of knowledge of any kind on the part of anyone” does not suspend the running of the statutorily prescribed period. Anyone unable to assert his own claim may have someone do so on his behalf. This allows subsequent purchasers to rely on the prescribed time limit, rather than having to investigate the mental or physical state of those who may have a claim to the property.

• See Conn. Gen. Stat. ß 47-33f; Fla. Stat. ß 712.05; Ind. Code ß 32-20-4-1; Mich. Comp. Laws ß 565.103; N.C. Gen. Stat. ß 47B-4; Ohio Rev. Code ß 5301.51; R.I. Gen. Laws ß 34-13.1-5; Vt. Stat. Ann. tit. 27 ß602(b); Wis. Stat. ß 893.33(5).

Disability and Tolling of

Statutory Time Period

90



• A number of states have contemplated the issue of whether a “wild deed” can be the root of title under the MRTA. A deed is “wild” when it is forged or invalid because the grantor of the interest does not actually own the purported interest.

Wild Deeds

91



•Ultimately, the majority of states that have considered the question have decided that a wild deed can in fact constitute root of title, despite it being invalid.

Wild Deeds

92



93



94



The End