22 Floors of Freedom

An interesting story from São Paulo, Brazil, where hundreds of homeless families took over an abandoned building and made something out of it:

The Prestes Maia building in downtown São Paulo, abandoned for 12 years, had become a haven for drugs and prostitution. Then, in 2002, more than 400 homeless families, in cooperation with a local group called the Downtown Homeless Movement, occupied the 22-story building. Conditions were crowded and difficult--the building lacks electricity and running water--but residents established a free library, cinema, and educational and social activities....

The Downtown Homeless Movement, which has reclaimed more than 30 buildings in São Paulo, is just one of many groups reclaiming abandoned buildings across Brazil. At Prestes Maia, residents have fought eviction with protests, road blockades, and legal battles. After years of struggle, they have won either new housing or assistance from the government.

I'd rather they won the building itself. But after a two-decade absence, the original owners apparently wanted it back. I'm sure there's more to this story than I now know, but based on what I've read so far, I'd say cases like this are why adverse possession laws are a good idea, despite their occasional abuses.

Elsewhere in Reason: Robert Nelson reviews a book about squatters, in Brazil and in other countries.

Elsewhere not in Reason: Photos from Prestes Maia.

Comments

joe | December 7, 2007, 11:20am | #

Why not link to some of the great stuff about Hernando de Soto that's appeared in Reason?

Illiterate J | December 7, 2007, 11:33am | #

An army of vagrants, drunks and hobos steals a valuable property from its lawful owner, and this get labelled as "freedom"? Good call comrade.

Episiarch | December 7, 2007, 11:39am | #

So Jesse, if some homeless people squat on your property that you're not currently using, that's cool, right?

Ali (aka iih) | December 7, 2007, 11:40am | #

So if someone homesteads something that belongs to someone else who has given up homesteading it (but still owns a deed to the property)?

Ali (aka iih) | December 7, 2007, 11:41am | #

Episiarch- Essentially my question.

Ali (aka iih) | December 7, 2007, 11:41am | #

... except that i left out the actual question:

So if someone homesteads something that belongs to someone else who has given up homesteading it (but still owns a deed to the property), does the latter loose ownership?

Jesse Walker | December 7, 2007, 11:43am | #

So Jesse, if some homeless people squat on your property that you're not currently using, that's cool, right?

If I abandoned it 20 years ago, don't have the deed anymore, and owe back taxes on it?

As a libertarian, I'll let the back taxes slide. But the other stuff...

Episiarch | December 7, 2007, 11:46am | #

If I abandoned it 20 years ago, don't have the deed anymore, and owe back taxes on it?

So the legitimacy of your property ownership is based solely on a piece of paper from the state? Some anarcho-libertarian you are.

Illiterate J | December 7, 2007, 11:48am | #

If I abandoned it 20 years ago, don't have the deed anymore, and owe back taxes on it?

The deed? A libertarian who needs a government permission slip to own property? The owners of this building would be entirely within their rights to flood the building with tear gas until the infestation is driven back out onto the streets.

The Wine Commonsewer | December 7, 2007, 11:48am | #

Real Life: My ex-girlfriend's grandmother owned a nice piece of real estate on a major commercial street in So Cal. Bought it in the 1930's. In the 1970's some doctors built an office on the land next door. Except they built the office on about half of grandma's land. City of Whittier didn't say a word. Grandma didn't have a clue and didn't foresee the need to hire a surveyor. Her land seemed to still be there the few times she had someone drive her by to look at it. Grandma dies, the heirs discover the property theft and sue. Too late. So the land just sits empty & useless.

And, of course, the intent to steal the land is obvious to me. You just don't accidentally build an office building on someone else's property.

Ali (aka iih) | December 7, 2007, 11:51am | #

Episiarch- But what if you do have the deed but stopped homesteading a property for "sufficiently" long time?

ChrisO | December 7, 2007, 11:52am | #

Adverse possession is one of the oldest doctrines of property law, at least in the Anglo-Saxon tradition, and there is a good reason for it.

One of the most important parts of adverse possession is that the "squatting" must be out in the open. In other words, if someone camps in hiding on my property for 20 years without my knowledge, they don't get the property. But if they set up shop out in the open and I find out but don't do anything about it for a set period of time, then I'm SOL. The law is designed to prevent people from 'sitting on their rights', so to speak, and to encourage the use of property.

Under an adverse possession regime (don't know if Brazil, being a civil-law country, applies it), the owner would have given up their property rights long before the Downtown Homeless Movement got involved, since they let other squatters use it for 12 years.

Episiarch | December 7, 2007, 11:53am | #

Ali, as far as I'm concerned, if it's your property, it's yours, and you do with it whatever you want. If you feel like leaving it alone for 20 years, that's your choice.

joe | December 7, 2007, 11:54am | #

You just don't accidentally build an office building on someone else's property.

You'd be surprised. An engineering error, an inaccurate plot plan...happens all the time. Seriously.

Jesse Walker | December 7, 2007, 11:54am | #

Well, the squatters didn't have a deed either... (And for all I know the source that claimed they didn't have the title was inaccurate. I haven't done any independent reporting here.)

The important issue is the fact of the abandonment. As far as I can tell, the owners did nothing with the building for nearly two decades. Until the squatters came along, the structure was a public nuisance. They built something, and then the original owners decided they wanted it back.

Again, there may be more to this story than I've seen so far. But my inclination right now is to say the squatters earned it fair and square.

ChrisO | December 7, 2007, 11:55am | #

So the legitimacy of your property ownership is based solely on a piece of paper from the state? Some anarcho-libertarian you are.

Ownership doesn't stem from the deed, but is proved by it, which is 99% of the battle in court.

ChrisO | December 7, 2007, 11:56am | #

Ali, as far as I'm concerned, if it's your property, it's yours, and you do with it whatever you want. If you feel like leaving it alone for 20 years, that's your choice.

Understandable, but there's 1,000+ years of legal tradition against you there.

The Wine Commonsewer | December 7, 2007, 11:56am | #

Actually, a deed isn't a permission slip to own property, it's a certificate of ownership. an executed bill of sale if you will, that is recorded (registered or filed) with a government agency (usually the county) that evidences your ownership interest.

You still own the property and you still get a deed regardless of whether you file the paperwork.

Mortgage lenders are hot to file the paperwork because they want a public evidence of their lien to help ensure that somebody doesn't sell the mortgaged property to someone else.

joe | December 7, 2007, 11:58am | #

Adverse posession is as much a part of the Anglo-Saxon tradition of private property rights as doctrines like trespass or the right of eviction.

Some people adhere to the Western tradition of private property, and some people use rhetoric about private property to maintain the privilege of the wealthy.

Episiarch | December 7, 2007, 11:58am | #

But my inclination right now is to say the squatters earned it fair and square.

So if I hack into Reason's website, and set up an entire alternate website in another folder while you aren't paying attention, can I "earn" your domain name?

The Wine Commonsewer | December 7, 2007, 11:59am | #

An engineering error, an inaccurate plot plan...happens all the time. Seriously.

A minor encroachment is understandable. But when the designed building is bigger than the lot, well, a lot of somebody's had to not be paying attention.

. | December 7, 2007, 12:01pm | #

So if I hack into Reason's website, and set up an entire alternate website in another folder while you aren't paying attention, can I "earn" your domain name?

They are also actively using the domain name, so no.

joe | December 7, 2007, 12:01pm | #

TWC,

The developers probably thought they owned the whole thing. I'd guess that a previous subdivision of a predecessor property was never recorded.

People don't generally sink six or seven figures into the construction of something when they know they could be ordered to demolish it at any time.

zig zag man | December 7, 2007, 12:02pm | #

"So Jesse, if some homeless people squat on your property that you're not currently using, that's cool, right?"

Let me ask our friends, the local Indian Tribe.

...

They said, "First we tried to appease the white man and let him trade trinkets for our lands. We let him make treaties with us which they broke with regularity. They finally lost their pretenses about bargaining and proceeded to take our best and sacred lands and give us farms to work which were worthless. We finally felt we had to fight for the land, but alas, their numbers were too great and they killed many buffalo so we starved and had to submit to them."

Well, I would say that about sums it up, those with the power to fight and win will get to keep their property.

/Do we really own our property or are we just renting it from the government?

P Brooks | December 7, 2007, 12:02pm | #

the squatters earned stole it fair and square.

joe | December 7, 2007, 12:02pm | #

If Reason let the web page stay up for years, while Episiarch frequently updated the page and used it for his business, the courts would probably rule against Reason in an lawsuit if they didn't do anything to get the page down for all those years.

Jesse Walker | December 7, 2007, 12:03pm | #

So if I hack into Reason's website, and set up an entire alternate website in another folder while you aren't paying attention, can I "earn" your domain name?

No. Nor can you beat up my brother, pee on my lawn, or commit any other crime that bears no resemblance to the case at hand.

Illiterate J | December 7, 2007, 12:03pm | #

there's 1,000+ years of legal tradition against you there

That doesn't make it right. There was 1000+ years of legal tradition asserting that the king was divinely chosen to rule. And the "western tradition of private property" was used to justify slavery. Since when is the slavish devotion to unjust traditions considered libertarian?

The Wine Commonsewer | December 7, 2007, 12:05pm | #

I'm curious about the taxes. The link to the adverse possession notes says paying the taxes is often a condition of gaining title. Wonder who paid the taxes on the building in question. Or if they were paid. Or if Brazil even has property taxes.

Episiarch | December 7, 2007, 12:05pm | #

No. Nor can you beat up my brother, pee on my lawn, or commit any other crimes that bears no resemblance to the case at hand.

Just because you don't like my overblown and inaccurate comparison doesn't mean you have to get pissy, Jesse.

The Wine Commonsewer | December 7, 2007, 12:07pm | #

Illiterate, good point, except I took it to mean that the thousand years of tradition is what your up against, not that it's right.

Isaac Bartram | December 7, 2007, 12:08pm | #

Episiarch

Adverse possession is not simple trespass. The occupation has to be of a character that indicates that the owner doesn't care.

The two examples we have in this thread don't come up to the standard that I learned about. I see some hanky-panky here.

Incidentally while Adverse Possession is provided for in the Florida statutes judges here have been extremely hostile to it. It has been a long time since a case was decided in favor of anyone but the party who held title.

P Brooks | December 7, 2007, 12:08pm | #

Wonder who paid the taxes on the building in question.

Or, perhaps, who bribed the tax collector; we're talking about Brazil, after all.

joe | December 7, 2007, 12:09pm | #

There was 1000+ years of legal tradition asserting that the king was divinely chosen to rule. Libertarians don't claim that their political philosophy is consistent with the western tradition of divine right.

And the "western tradition of private property" was used to justify slavery. The western tradition of private property was used, post-facto, to justify the novel institution of chattel slavery, which hadn't previously existed under the Anglo-Saxon tradition of property. Quite a bit different than the docrtine of adverse posession, which had been recognized and applied continuously for hundreds of years.

Jesse Walker | December 7, 2007, 12:10pm | #

I'm curious about the taxes. The link to the adverse possession notes says paying the taxes is often a condition of gaining title. Wonder who paid the taxes on the building in question. Or if they were paid. Or if Brazil even has property taxes.

Brazil has property taxes. In this case they were not paid.

I'm not sure if Brazil has an Anglo-American-style adverse-possession rule, but I understand they do have a fairly radical law -- one that might go further than I'm willing to go -- that allows for actions like the Prestes Maia occupation.

Since when is the slavish devotion to unjust traditions considered libertarian?

I'm all for weeding out any injustices embedded in our adverse-possession system, no matter how old they might be. But property abandonment happens, and any system of property law is going to have to include a way to deal with it.

Eryk Boston | December 7, 2007, 12:12pm | #

Legal lesson for the day - adverse possession is basically a variation of the statute of limitations. You have a limited number of years to file an action for ejectment against a squatter or you will be estopped from bringing it. The squatter can then bring an action to quiet title to the land and take ownership of it.

ChrisO is wrong in that the squatting by the previous occupiers would not count towards the time by the current people unless they transfered their interest to the new squatters (privity of estate). Also, the courts won't count time when the the owner was incapacitated (a minor, insane, in prison).

The effect is that the right to property carries a minimum duty to secure it. The big question here is if the original owner really abandoned it. Truly abandoned property is free to be claimed by the first person who grabs it.

Of course, all of the above only applies to common law nations. No way to know what would happen in some freakish place like Brazil or Louisiana.

Sulla | December 7, 2007, 12:15pm | #

Adverse possession is not simple trespass. The occupation has to be of a character that indicates that the owner doesn't care.

The two examples we have in this thread don't come up to the standard that I learned about. I see some hanky-panky here.

I'd like to second this - while the term varies from state to state, it's almost always at least 15 years. You could quibble about the details, but the intent is that the actions of both parties make it clear that the original owner has abandoned their property. Imagine expecting to find my pen where I dropped it twenty years ago because it's MY property.

P Brooks | December 7, 2007, 12:15pm | #

Truly abandoned property is free to be claimed by the first person who grabs it.

Tell that to the cop when he collars you for not promptly turning it over to him.

highnumber | December 7, 2007, 12:16pm | #

Was my squatter's blog legal or not?

BTW, Jesse & joe are right, but I still need to quote Sheer Terror:
"Squatters' rights?! I'll give you a right, I'll give you a left, and I'll give you a kick to the fucking head!"

joe | December 7, 2007, 12:18pm | #

If you drop your suitcase in the street, the person who finds it is legally obligated to turn it in to the police, who will hold it for (usually) 30 or 60 days.

If the owner doesnt' claim his property, the finder can, after that period. Sure, the owner can come in and say "I intended to leave that suitcase on the sidewalk. That's what I chose to do with my property, now give it back!" But if he doesn't, he's abandoned the suitcase, and is no longer the owner.

Same thing here.

Warren | December 7, 2007, 12:20pm | #

Holy crap. Of course adverse possession is consistent with libertarian principles (IMHO). It's about property rights. If you abandon your property and someone comes along and starts making use of it, and they do this for several years out in the open, then of course we should recognizes the transfer of ownership. It's fricking abandoned for Apollo's sake. You walk away from your property, you loose it.

The Wine Commonsewer | December 7, 2007, 12:21pm | #

Brazil has property taxes. In this case they were not paid.

Hmmmmm. That sort of tilts the table a different way, doesn't it? Of course, in the US if you don't pay the property taxes, the government either takes possession or auctions the property for the back taxes.

Now, I'm not saying that a system of property taxes is good, but I would argue that the building's owners were not very interested in protecting their interests if they didn't even pay the taxes on the property.

The Wine Commonsewer | December 7, 2007, 12:24pm | #

Warren, that's a good point and, it is, after all how we justify our land claims here in the New World. And it stems from that philosopher guy that we all sort of admire.

Warren | December 7, 2007, 12:25pm | #

A minor encroachment is understandable. But when the designed building is bigger than the lot, well, a lot of somebody's had to not be paying attention.

Not so. You'd be surprised at how "undefined" lot lines are.

Sulla | December 7, 2007, 12:26pm | #

Eryk Boston - excellent point, well stated.

Of course, all of the above only applies to common law nations. No way to know what would happen in some freakish place like Brazil or Louisiana.

I am somewhat familiar with the civil code of Spain. Spain recognizes a different property regime than the common law system (dominio ~ fee simple), but something very similar to adverse possession exists.

joe | December 7, 2007, 12:27pm | #

"...thence roughly eastward to the rock that looks like a bear..."

Illiterate J | December 7, 2007, 12:27pm | #

it is, after all how we justify our land claims here in the New World.

No it isn't. We justify out land claims by right of conquest. Nobody ever claimed "We own all the land in Georgia because the Cherokee abandoned it". We own Georgia because we forcibly evicted the Cherokee and they couldn't do anything about it.

We own the Moon by adverse possession, but not the New World.

Jesse Walker | December 7, 2007, 12:29pm | #

We own the Moon by adverse possession

Hold on. Who abandoned the moon?

The Wine Commonsewer | December 7, 2007, 12:30pm | #

High, that's funnier than hell. Great stuff, nice work, now hand me the paper towels so I can clean the coffee residue off monitor.

Eryk Boston | December 7, 2007, 12:32pm | #

P Brooks, if you drop your wallet by accident it is not abandoned and no person can reasonably claim to have believed it was. This is not to say the sting to which you are referring wasn't ridiculous. Abandoned means you've deliberately left with no intention to ever reclaim.

TWC, I hate to tell you this but a number of court cases trace many New World property claims to transfer by "conquest".

greenish | December 7, 2007, 12:33pm | #

Another angle: why is stealing wrong? Well, it's because taking the fruits of someone else's labor is unjust. The fruits of labor include property that directly arises from the labor, and property that was traded for. So are these people appropriating the fruits of the former owner's labor?

They can't be. It's only after they set up shop that the property became valuable and the former owner began taking an interest.

The Wine Commonsewer | December 7, 2007, 12:33pm | #

fee simple

I've always wondered why Hawaii uses that term with respect to buying real estate. I'd be obliged if anybody has an answer.....

OK Warren and Joe: Uncle. Building the office on half of grandma's land may have been an accident. I'm probably more cynical because it was personal and not distant.

Sulla | December 7, 2007, 12:34pm | #

No it isn't. We justify out land claims by right of conquest. Nobody ever claimed "We own all the land in Georgia because the Cherokee abandoned it". We own Georgia because we forcibly evicted the Cherokee and they couldn't do anything about it.

As far as I recall, one of the first cases (U.S. Supreme Court) we had to read in property law asserted that the United States owns the land where the thirteen colonies through Great Britain's right, which was gained by right of discovery. I believe the reasoning was that the national sovereignty of land can only be held by a nation-state, and the Native Americans had not reached that level of politcal organization. I didn't really agree with the reasonign at the time, but I think that is the basis for the current claims of the U.S. to own the 13 original states. It would be interesting to examine the claims for all of them.

Pro Libertate | December 7, 2007, 12:35pm | #

Jesse,

SHADO abandoned the moon.

Common law adverse possession (from Wex):

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, defined by a statute of limitations.

The common law requirements

The common law requirements have evolved over time, and the articulation of those requirements varies somewhat from jurisdiction to jurisdiction. Typically, adverse possession, in order to ripen into title, must be:

(1) Continuous, or so the decisions typically say. What they mean to say is that possession must be continual.

(2) Hostile to the interests of the true owner; this is the adverse part of adverse possession.

(3) Open and notorious, so as to put the true owner on notice that a trespasser is in possession.

(4) Actual, so that the true owner has a cause of action for trespass, on which the true owner must act within the statute of limitations.

(5) Exclusive, in order that there be no confusion as to who acquires title once the time has run.

The statute of limitations - A typical statute will require possession for 7 years, if under color of title, or 20 years, if not.

I think someone mentioned this point above, but the owner's knowing of the squatting is a key element of adverse possession.

. | December 7, 2007, 12:36pm | #

Hold on. Who abandoned the moon?

The Native Mooninites, who are now forced to live on the lunar reservations. Their casinos can be seen in the documentary film "The Adventures of Pluto Nash"

joe | December 7, 2007, 12:38pm | #

P Brooks, if you drop your wallet by accident it is not abandoned and no person can reasonably claim to have believed it was.


Just as, if you leave your window open, you have not abandoned your house, and no reasonable person can claim to believe you had.

However, if you don't make any effort to claim your wallet for a year, or if you don't make any effort to evict people who are openly living on or farming your property, you HAVE abandoned it.

Eryk Boston | December 7, 2007, 12:39pm | #

TWC fee simple is the legal term for full ownership of property in common law(as opposed to fee simple subject to condition subsequent, life estate, fee simple determinable etc. for more information, go to law school)

Sulla | December 7, 2007, 12:40pm | #

I've always wondered why Hawaii uses that term with respect to buying real estate. I'd be obliged if anybody has an answer.....

Quick and dirty answer - It comes from the English common law. A fee, or fief, was the term for a holding of land under the feudal system. I'm not sure when it became a fee simple, but a fee simple indicates the greatest number of property rights you can have in piece of land.

joe | December 7, 2007, 12:41pm | #

I think someone mentioned this point above, but the owner's knowing of the squatting is a key element of adverse possession.

There's actually some wiggle room here, in the "open and notorious" language. If the titled owner doesn't even drive by the property once every ten years and notice that there are 400 people coming in and out and setting up shop, his ignorance is not a defense. He should have known, as the occupation was open and notorious.

J sub D | December 7, 2007, 12:42pm | #

You'd be surprised. An engineering error, an inaccurate plot plan...happens all the time. Seriously.

Oh yeah. By people supposedly smarter than surveyors and builders. Recall the Hubble telescope fiasco. Mistakes happen.

robc | December 7, 2007, 12:43pm | #

Who abandoned the moon?

The Hnau?

Episiarch | December 7, 2007, 12:46pm | #

Hold on. Who abandoned the moon?

The Native Mooninites, who are now forced to live on the lunar reservations.

Using a key to gouge expletives on another's vehicle is a sign of trust, and friendship.

The Wine Commonsewer | December 7, 2007, 12:47pm | #

I need to be more clear. We libertarians primarily justify property claims in the New World and elsewhere by invoking Locke. That's what I mean.

And, if we are to morally gain title to the Moon, we need to go there and set up shop, cuz nobody abandoned the Moon.

Though the Earth…be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men.

Warren | December 7, 2007, 12:48pm | #

The moon is still available to anyone who can homestead it.

Sulla | December 7, 2007, 12:48pm | #

As far as I recall, one of the first cases (U.S. Supreme Court) we had to read in property law asserted that the United States owns the land where the thirteen colonies through Great Britain's right, which was gained by right of discovery.

Johnson V. M'Intosh, 21 U.S. 543 (1823). I have to go to a meeting, so I can't give a full analysis, but basically it says that the U.S. had the right to sovereignty over its land because of discovery, but that that to take occupancy of the land, it had to acquire land by conquest or purchase from the inhabitants. YMMV

The Wine Commonsewer | December 7, 2007, 12:49pm | #

Thanks Eryk and Sulla, I appreciate it. Always thought it was an odd term being used to *normal* terms like *deed*. :-)

Sulla | December 7, 2007, 12:53pm | #

(5) Exclusive, in order that there be no confusion as to who acquires title once the time has run.

This the main thing that suprised me about the Colorado case cited above - AFAIK, exclusive means you have to be the only user of property - if the true owner is doing things like cutting the grass, the most you could get is maybe some kind of easement. That's why I agree with Isaac Bartram that there was some hanky-panky going on.

Isaac Bartram | December 7, 2007, 12:58pm | #

fee simple...

To add to Sulla's point it comes up more often in Hawai'i because so much of the land there is leased (old Royal Estates and stuff). You may own the house, but you rent the land upon which it sits.

It is importrant for the buyer to know what type of interest he is aquiring.

Land leases exist elsewhere, of course, but they are so common in hawai'i that the realtor's apparently feel it's important to make the distinction.

stephen the goldberger | December 7, 2007, 12:59pm | #

A lot of the adverse posession laws that you are talking about being a part of anglo-saxon tradition come from the fact that not all land was claimed. Hernando De Soto's discussion of them also comes from the fact that so many of these lands are actually owned by the government since the latin american countries were suffering extreme socialism and dealing with land reform. That is very different than the case at hand, and just because I abandon a piece of property because I feel its not economically worth developing, doesn't mean I don't own it and have no claim on it. Its an investment that at some point in the future it will be economically worthwhile to develop. If the squatters want to buy it they can try but the original owners own the property and if you ignore their property rights you are ignoring the very mechanism that enables free market capitalism.

The Wine Commonsewer | December 7, 2007, 1:08pm | #

.....rats, I still didn't finish my thought. Locke's concept of first possession and use is related to adverse possession (although obviously it is not the same) which is what I was getting at. That, and the difference between accepted common law in the US and how a libertarian would approach property rights.

Isaac Bartram | December 7, 2007, 1:10pm | #

To be more clear, Hawaian realtors include "fee simple" in their ads to make it plain that you are getting fee simple tile to the land rather than a leasehold.

Sulla,

It is "fee simple" as opposed to "fee tail".

"Fee simple" means it is yours to do with what you please while "fee tail" means the title is somehow entailed or restricted. Say due to inhritence or some such.

The "fee" or "fief" is the estate. The second word is the qualifier.

As far as I know fee tail is not legal in the US. I think because it is considered a relic of aristocracy and feudalism.

Sulla | December 7, 2007, 1:10pm | #

A lot of the adverse posession laws that you are talking about being a part of anglo-saxon tradition come from the fact that not all land was claimed.

Not sure what you mean - adverse possession by it's very name means possession against a claimant. It has Anglo-Saxon antecedents, but it also has roots in the Norman French legal tradition, not really developing until the 12th and 13th centuries, by which time most if not all land in England had at least titular owners.

The Wine Commonsewer | December 7, 2007, 1:11pm | #

Thanks Isaac.

Sulla | December 7, 2007, 1:13pm | #

As far as I know fee tail is not legal in the US. I think because it is considered a relic of aristocracy and feudalism.

You're probably right - but I have a nagging memory from studying for the bar that the rule against perpetuities is applied against entailed estates. Of course, the rule against perpetuities is almost an anachronism anyway.

The Wine Commonsewer | December 7, 2007, 1:17pm | #

I guess I'm curious as to how the owners of the building in question can assert ownership rights when they do not have a deed to the property or pay taxes on it. Oh, yeah, it's Brazil.

Isaac Bartram | December 7, 2007, 1:18pm | #

stephen the goldberger has a valid point.

Adverse Possession was generally considered to apply to unimproved land. Indeed one of the requirements for adverse possession is to make improvements. (that's one of the reasons I find the CO case cited fishy).

Now while the original conception may have allowed for a rundown crofter's shack, I'm not sure where 22-story buildings fall in the matter. Trying to decide a case like this could make a judge's head explode.

joe | December 7, 2007, 1:19pm | #

Adverse possession only applies in cases where the land is owned, not to unclaimed land.

Government ownership of large amounts of land in Latin America dates back to the Spanish conquests, where the crown claimed all the land and doled out dribs and drabs at its discretion. In many cases, the "extreme socialsts" engaged in "land reform" were engaged in the privatization of government-owned land.

Not developing your land is not enough to constitute abandonment. You have to not do anything as other people develop it.

Hernando de Soto also wrote about squatters who took over privately-owned land in "The Other Way."

joe | December 7, 2007, 1:21pm | #

Isaac,

The classic case of adverse posession involves squatters farming fields that other people have abandoned. When you're talking about a field, you're talking about land that somebody went through a great deal of effort to clear of trees, so it is improved land. Especially in the 1300s-1800s.

x,y | December 7, 2007, 1:29pm | #

Until the squatters came along, the structure was a public nuisance.

BFD. What shape the building is in has no bearing on whether it was abandoned.

Isaac Bartram | December 7, 2007, 1:30pm | #

Sulla, since YARAL you have a definite advantage over me. I know what I know because I once spent time studying to be a Land Surveyor. I found that that's not what I wanted to do so I found another way to stay off the streets and out of trouble.

In a former life I wrote Legal Descriptions for highway taking so I have a lot to repent for in this crowd. :)

joe, good point. But an adverse possession case would not stand if the owner had kept his improvements in good repair.

My point was really menat to refer to existence of a rather large and notable improvement; viz. a 22-story building. Such an improvement complicates things but I don't really know if it would negate the case.

Isaac Bartram | December 7, 2007, 1:33pm | #

I must confess, I can't see how a bulding could have remained even close to safe for occupancy without some repairs and maintenance having been done.

nebby | December 7, 2007, 1:40pm | #

Memory device for elements of adverse possession:

HA CONE

Hostile
Actual
Continuous
Open/
Notorious
Exclusive

Glad to see that 100k in tuition did not go to waste.

Russ 2000 | December 7, 2007, 1:40pm | #

This reminds me of something similar regarding Wrigley Field a few years ago.

http://findarticles.com/p/articles/mi_qn4155/is_20010729/ai_n13918423?lstpn=article_results&lstpc=search&lstpr=external&lstprs=other&lstwid=1&lstwn=search_results&lstwp=body_middle

Brandybuck | December 7, 2007, 1:41pm | #

The owners had abandoned the building. From what I can understand, they were not using it for any purpose, were not seeking tenants, failed to evict the pushers and prostitutes abusing it, neglected it, etc. For years. Squatting in this building is as legal as retrieving an apple core from someone's trash.

Jennifer | December 7, 2007, 1:45pm | #

just because I abandon a piece of property because I feel its not economically worth developing, doesn't mean I don't own it and have no claim on it. Its an investment that at some point in the future it will be economically worthwhile to develop.

But the word "abandon" means you do, in fact, lose your claim on it. You can have a piece of land and leave it undeveloped without actually abandoning it: just check up on it from time to time, or hire an agent to do it for you. Make sure nobody's squatting on the land, and (if it's in close proxmity to neighbors) make sure it hasn't become a rat haven or other sort of nuisance. It sounds like the original owners of the Brazilian building couldn't be bothered to do that: they did nothing to chase out the squatters, nor the criminals* who'd made their lodgings there before.

(Yes, as a True Libertarian I don't think prostitutes and drug dealers shold be considered criminals anyway, blah blah blah.)

joe | December 7, 2007, 1:47pm | #

x, y,

BFD. What shape the building is in has no bearing on whether it was abandoned.

If it was allowed to deteriorate from a habitable building into a public nuisance, that's considered evidence that the owner abandoned it. It's not as though they bought a building in that condition a week ago.

I think some commenters are misunderstanding the concept of abandonment. It's not that the owner wasn't actively using the land, or that the squatters are putting it to a higher and better use. People board up buildings and keep them empty for years all the time - but that's the point, they keep them empty. They don't abandon the property, they just don't use it.

It's the actual abandonment - they lack of maintenance, presence, or attempt to evict trespassers that makes the property abandoned.

Pro Libertate | December 7, 2007, 1:50pm | #

I think the squatters should label the building as "blight" and describe their taking as a "public use". Payment is in the mail.

prolefeed | December 7, 2007, 1:51pm | #

A twenty-two story building with no electricity or water? Someone was willing to walk up and down 22 stories every time they needed a drink or to use the bathroom. Wow.

Or did they just take over a few stories at the bottom of the building?

It seems to me if you choose to let your property sit vacant for 22 years, that's your business, and nobody should be able to take it away from you. Though, common sense would seem to dictate wandering by every now and then and evicting the squatters.

prolefeed | December 7, 2007, 1:55pm | #

joe -- I'm going to play Devil's Advocate here. Owner A intends to keep her abandoned property, and, being a mean-hearted bitch, vigorously evicts anyone trying to squat on it. Owner B also intends to keep her abandoned building, but, being a kind-hearted person, thinks, well, let the homeless people live there until I have some use for the property.

Are you saying that we should penalize owner B for her charity by confiscating her property and awarding it to the recipients of her charity?

Russ 2000 | December 7, 2007, 2:11pm | #

prolefeed, sounds like Owner B is the King Of England and the homeless people are Americans.

joe | December 7, 2007, 2:11pm | #

prolefeed,

An owner who chooses to allow the homeless to use her property simply needs to stop by once a year and tell them that it's ok for them to stay there in order to avoid an adverse posession claim. Or have someone do it for her. Or send a letter to the address while CC'ing the city.

joe | December 7, 2007, 2:13pm | #

Sweep the vestibule. Walk the perimeter of the property. Anything that demonstrates her continued ownership.

TomHynes | December 7, 2007, 2:16pm | #

They kicked out the prostitutes and put in a freaking library and this is supposed to be a positive change?

The Wine Commonsewer | December 7, 2007, 2:17pm | #

Prole, we have something similar to that in Ca with respect to open land. I can't remember now but if you have open land and you allow anyone to ride, walk, hike, camp, hunt, fish, etc for a rather short period of time (3 yrs I think) you lose the right to exclude them. You still own the land, you then must allow public use. Because you did for a while.

Isaac Bartram | December 7, 2007, 2:20pm | #

Though, common sense would seem to dictate wandering by every now and then and evicting the squatters.

Actually, common law requires wandering by every now and then and evicting the squatters. That's what you do to defend your title.

In your example owner A has defended her title in one way. If owner B wants to do defend her title she will have make an agreement with the occupants re the terms under which they can occupy the building. They would then become her rent-free tenants (although it is unlikely that local health and safety codes would permit this). The absence of any such agreement or any other action is tacit acceptance of their right to occupy the building.

joshua corning | December 7, 2007, 2:22pm | #

Adverse posession is as much a part of the Anglo-Saxon tradition of private property rights as doctrines like trespass or the right of eviction.

Some people adhere to the Western tradition of private property, and some people use rhetoric about private property to maintain the privilege of the wealthy.

Bullshit Joe...i am perfectly fine with adverse possession (although it would be nice if the also extended to public lands) and anyone who is not a newbie to property rights is the same way.

jimmy smith | December 7, 2007, 2:24pm | #

Only the building was vacant, the land itself, which the deed is for, was still in possession of the owner. In the Midwest we see many abandoned farms, houses in decay, fields not being used. Can this be squatted? "Course not, but as Flip Wilson said, "You don't know what you can get away with until you try"

The government is only concerned that the taxes are still being paid.

Kevin Carson | December 7, 2007, 2:26pm | #

Episiarch and prolefeed,

Any system of property rights must include some provision for constructive abandonment (i.e., a set of rules for determining whether a property has been abandoned). And that set of rules, necessarily, includes a large element of convention. Otherwise, all vacant land that was once owned would sit idle forever if the owner disappeared or died without heirs.

Do you also reject the law of salvage, on the grounds that the owners of a wrecked vessel might conceivably retrieve the flotsam from the sea a hundred years later?

. | December 7, 2007, 2:28pm | #

Owner B also intends to keep her abandoned building, but, being a kind-hearted person, thinks, well, let the homeless people live there until I have some use for the property.

Ask Owner B how charitable she is if a homeless person falls down 22 flights of stairs in her building should one of the steps breaks and holds the owner accountable.

Isaac Bartram | December 7, 2007, 2:37pm | #

D'oh joe already said what I meant, only better.

TWC

In Canada a number of owners of lakefront property were allowing people to cross their land to get to the lake. Under Ontario law if this access was continuous for a number of years the path became a public right-of-way. To prevent this all the owner had to do was to put a chain or other barrier across the path for one day a year and post a notice that it was closed.

If I'm not mistaken CA has the same provision. I seem to recall that Barbra Streisand or some other celeb had that happen to her beachfront estate. I thought there was a certain justice in someone like that having to suffer the unwashed masses (who they care, oh so much, about) walking past the kitchen window. :)

Ask Owner B how charitable she is if a homeless person falls down 22 flights of stairs in her building should one of the steps breaks and holds the owner accountable.

Yet another reason for the owner to keep an eye on the place.

Only the building was vacant, the land itself, which the deed is for, was still in possession of the owner. In the Midwest we see many abandoned farms, houses in decay, fields not being used. Can this be squatted?

Unless the owner has come to inspect the land then its status is exactly the same as the building's.

And those farms most certainly can be squatted. It is unlikely that they are as "abandoned" as you think they are.

But again whether the squatting is successful is a matter for the courts.

x,y | December 7, 2007, 2:42pm | #

joe,

You can let a building deteriorate and still not abandon it physically, which is what I meant (and which you knew I meant). Playing semantic games doesn't refute this point.

highnumber | December 7, 2007, 2:44pm | #

What semantic games is joe playing?

VM | December 7, 2007, 2:48pm | #

What Highnumber said.

prolefeed | December 7, 2007, 2:51pm | #

In your example owner A has defended her title in one way. If owner B wants to do defend her title she will have make an agreement with the occupants re the terms under which they can occupy the building. They would then become her rent-free tenants (although it is unlikely that local health and safety codes would permit this). The absence of any such agreement or any other action is tacit acceptance of their right to occupy the building.

So, Owner B has this building that she has no current plans to develop. She, being compassionate, wants to let homeless people take shelter there, but has no money to comply with all the local health and safety codes, which are all geared toward rental property with (relatively) affluent occupants, not homeless people who would welcome vastly substandard shelter to sleeping out in the open.

So, is it a good idea for the owner to be forced to be heartless and not allow the homeless to live there because of said government safety codes and health regulations?

I can see allowing constructive abandonment for when no owner can be found, or sunken ships that have laid unclaimed for hundreds of years. I have problems with taking property from readily identifiable owners because they were kind-hearted to homeless people, albeit in ways the government disapproves of.

Oh, and joshua corning -- I own several properties, so I think it is a reach to say that having issues with adverse possession marks me as a newbie to property rights. That smacks more of "anyone who disagrees with me must be denigrated."

J sub D | December 7, 2007, 2:52pm | #

They kicked out the prostitutes and put in a freaking library and this is supposed to be a positive change?

Hey, privately funded libraries are cool.

R C Dean | December 7, 2007, 2:54pm | #

I would like to go on record here as saying that I agree with every single thing joe has said in this thread.

That has to be a first. And will likely be an only.

Carry on.

CL | December 7, 2007, 2:54pm | #

FWIW, fee tail is still legal in four or five east coast states.

R C Dean | December 7, 2007, 2:56pm | #

So, Owner B has this building that she has no current plans to develop. She, being compassionate, wants to let homeless people take shelter there.

If the owner gives permission for you to be on her land, then adverse possession does not apply because it isn't, you know, adverse.

I have problems with taking property from readily identifiable owners because they were kind-hearted to homeless people, albeit in ways the government disapproves of.

In your hypothetical, the property wouldn't be taken by the homeless under adverse possession, it would be condemned by the government for not meeting code.

Isaac Bartram | December 7, 2007, 2:59pm | #

prolefeed

I don't know if your being deliberately obtuse here.

Adverse possession has a statutory number of years attached to it (the lowest number in any state I've heard is seven). It's not like you let the squatters in on Tuesday and the court gives them title on Friday.

FWIW, fee tail is still legal in four or five east coast states.

Thankyou. I stand corrected.

And, people, please note that is "fee tail" not "tail for a fee" which I'm certain is legal in only one of the fifty states.

Dakota | December 7, 2007, 3:02pm | #

Can my lazy brother who lives in my basement claim ownership of my house?

I mean, shit he hasn't paid rent in 4 years and I know he is down there. I smell the grass and hear the foghat... Tecnically I'm letting him live there. Lets keep this adverse possession thing under wraps, mmmk?

Dakota's lazy bro (Call Me South) | December 7, 2007, 3:08pm | #

Dude, Bro, do you have any cheetos, man? Can I borrow your car this weekend? I, uh, have a job interview. Yeah, yeah, I have a job interview. Can I borrow $100, too? I, uh, uh, need to, uh, buy, uh, get a haircut and, uh, pay for parking. Thanks, man. Don't wait up for me.

e | December 7, 2007, 3:08pm | #

Understandable, but there's 1,000+ years of legal tradition against you there.

LOL, Epesiarch got anglo-sax0wned!

Pro Libertate | December 7, 2007, 3:17pm | #

I must take issue with the references to Anglo-Saxon property law. Our property law is Norman. All hope for the world ended when Vikings adopted French ways and imposed them on the English.

As for the building, I have a solution. Two go in, one comes out. Two go in, one comes out.

x,y | December 7, 2007, 3:17pm | #

joe was noting that "abandoned," broadly constured, could mean not maintaining the builidng. But when dealing with real property, "abandonded" generally refers not to maintaining/upkeep, but to physical presence.

x,y | December 7, 2007, 3:21pm | #

"abandoned property" - "Property that the owner voluntarily surrenders, relinquishes, or disclaims."

Blacks Law Dictionary, 7th ed.

It has nothing to do with upkeep.

prolefeed | December 7, 2007, 3:34pm | #

R C Dean and Isaac Bartram -- not trying to be deliberately obtuse. I'm defending the concept that, in a more libertarian society, a clearly identifiable owner should be able to let a property suffer benign neglect, be inhabited by homeless people that the owner neither gives explicit permission to nor denies entrance to, for any length of time, and not have the property taken for either adverse possession or building or safety code violations.

I'm saying that if you own property, you should be able to utilize it (or not utilize ite) however you please so long as you aren't harming others. Obviously, that's not how the world works today, and I take umbrage with that current unlibertarian system.

Kaganspawn | December 7, 2007, 3:53pm | #

Trademarks evoke Lockean ideas about property rights in that, under common law, trademark rights are created by usage (see TWC's post), but an ongoing usage requirement has always seemed to make more sense for marks than adverse possession doctrine for lands. Stop using the mark in commerce and eventually you lose the rights to the mark by abandonment even if no one else is using it. Maybe the explanation is that trademark rights are not really property rights at all, just an outcropping of the state's desire to prevent consumer confusion. Or maybe the point is that even rights that spring into existence through individual efforts (like Dondero-brand inflatable sex dolls, or farming the neighbour's land) derive not from Zod or FSM but from the G, so the G can impose conditions like requiring you to exclude others or make active use, because land and marks are both limited resources.

Kenny | December 7, 2007, 4:26pm | #

Can my lazy brother who lives in my basement claim ownership of my house?

I mean, shit he hasn't paid rent in 4 years and I know he is down there. I smell the grass and hear the foghat... Tecnically I'm letting him live there. Lets keep this adverse possession thing under wraps, mmmk?

Well, no. But, conversely, in most states, absent any immminent threat to you or others life and property you just can't kick him out without a formal process that will take at least 30 days.

This, as well as all the other examples brings up a good point.

Where the 'standard libertarian disclaimer' generally does not have to be invoked is objections to many provisions of criminal law, because of the broad emerging consensus that the state is criminallizing too many trival actions

But, most of what we are talking about falls in the realm of civil law, where two private entities have competing claims and the state in only acting as a referee.

So, most right-thinking (I should say good-thinking) libertarians can have honest principled disagreements on the nature of the ground rules, to try to maximize public bennefit, and prevent strange attractors from occuring by giving in the extremes of either set of competing interests.

Yes, there may be some loss of efficiency, but like the governor on a engine it serves to maintain stability as the rpm's increase. And note, like an engine governor, it does not provide any motive force itself.

greenish | December 7, 2007, 4:28pm | #

Even in a pure anarcho-capitalist society, I think it would be highly unlikely for the owner of a high-rise building in the middle of a city to have complete reign within his borders. Chances are there would be some contracts with neighbors regarding things like noise and odor pollution, guarantees that minor trespasses should not result in excruciating death, perhaps Coasean bargains regarding businesses which help draw clientèle to each other, etc. There would be strategic compromises between property owners neighboring each other to ensure they all can get along, the kinds of things which are now dealt with by convention and law. Abandonment should fall in there as well.

Because of all that it is not trivial to analogize a property owner in the present to a fictional property owner in Libertopia.

prolefeed: I agree that it should be possible to deliberately neglect a property and keep it, but I think if that were possible, no one would actually do it. Imagine you could buy a property with an abandonment clause ("you lose this title if you fail to show up for 20 years while other people openly use your property") or without. The property without the clause would be more expensive, and why would anyone pay for that right? Again, I'm not arguing that you shouldn't be able to do it, but how much do we really lose, not having that option?

joe | December 7, 2007, 4:33pm | #

jimmy smith,

In the Midwest we see many abandoned farms, houses in decay, fields not being used. Can this be squatted? Yes. If someone moved it, set up shop, and raised crops for a number of years without the owner doing anything about it, the squatters may well prevail.

x,y,

If it was allowed to deteriorate from a habitable building into a public nuisance, that's considered evidence that the owner abandoned it. What is it about this statement that you find so confusing? Are you having difficulty with the definition of "evidence?"

Can my lazy brother who lives in my basement claim ownership of my house?

No, not if you are allowing him to live there.

prolefeed,

I'm defending the concept that, in a more libertarian society, a clearly identifiable owner should be able to let a property suffer benign neglect, be inhabited by homeless people that the owner neither gives explicit permission to nor denies entrance to, for any length of time, and not have the property taken for either adverse possession or building or safety code violations. She can. I've listed several very low-cost low-effort ways for her to keep the property from being considered abandoned.

Sulla | December 7, 2007, 4:40pm | #

Back from my meeting, and I have one thing to add - If you let someone live in your property, they can't claim adverse possession - that's where the Hostile part of the equation comes in.

The Wine Commonsewer | December 7, 2007, 4:51pm | #

I thought the only place fee tail was legal was Nevada.

stephen the goldberger | December 7, 2007, 4:52pm | #

When hernando de soto mentions Adverse posession of private property he does so mostly when discussing land where the claim is uncertain (because of multiple claims or because of poor gov't record keeping/land reform). De soto's entire point is that the gov't needs to ensure property rights from the rich down to the poor with a more accesible legal system. Ignoring the property rights of the wealthy is not his argument.

Russ 2000 | December 7, 2007, 5:37pm | #

I'm saying that if you own property, you should be able to utilize it (or not utilize ite) however you please so long as you aren't harming others. Obviously, that's not how the world works today, and I take umbrage with that current unlibertarian system.

And I'm saying that your system is the exact same thing feudalists and monarchs used. Road to serfdom, indeed.

Kolohe | December 7, 2007, 5:56pm | #

All hope for the world ended when Vikings adopted French ways and imposed them on the English.

See, this is what happens when you don't prevent your southern latin language neighbors from crossing your border. :)

SIV | December 7, 2007, 6:33pm | #

Incidentally while Adverse Possession is provided for in the Florida statutes judges here have been extremely hostile to it. It has been a long time since a case was decided in favor of anyone but the party who held title.

I have a vague recollection of a "rails to trails" project being derailed in the panhandle by adverse posession as a landowner adjacent to an abandoned rail bed was farming on it.That was back in the 1980s though.

joshua corning | December 7, 2007, 6:41pm | #

I would like to go on record here as saying that I agree with every single thing joe has said in this thread.

That has to be a first. And will likely be an only.

Carry on.

Then you need to reread this statement:

Some people adhere to the Western tradition of private property, and some people use rhetoric about private property to maintain the privilege of the wealthy.

Joe is attempting to rewrite the intent of adverse possession as some sort of redistribution scheme.

Which is not its intent at all, but in fact an extension of the basic premise that possession holds more clout under the law then simple claim does. Use, residence, and improvement of land; these are the primary indicators of possession.

joshua corning | December 7, 2007, 6:56pm | #

You just don't accidentally build an office building on someone else's property.

Bwahahahahahahahahahaha!!!!

Dude who wrote this?

Seriously I got it from joe quoting it...

What planet to you live on man?

Have you ever looked at a GIS map showing parcels overlaying an aerial photo? I would say looking at any single city block in America you would be out of the norm to not find at least one improvement not encroaching on another owners property.

joshua corning | December 7, 2007, 7:02pm | #

You can let a building deteriorate and still not abandon it physically, which is what I meant (and which you knew I meant).

If you are not residing in it, using it or improving it (improvement includes maintenance by the way) then you are not in possession of it. You might get away with that if no one else uses it resides in it or improves it...but if they do, tough luck they are in possession of it now.

The Wine Commonsewer | December 7, 2007, 7:50pm | #

I wrote it. I already caved. But I have to say what I said before. I can understand a mild encroachment but when the office building is 50% longer than the lot it sits on I call bullshit on a whole lot of people who weren't paying attention. This building encroached upon the next property far enough to render the adjacent property useless for anything but a parking lot.

Isaac Bartram | December 8, 2007, 12:04am | #

I have a vague recollection of a "rails to trails" project being derailed in the panhandle by adverse posession as a landowner adjacent to an abandoned rail bed was farming on it.That was back in the 1980s though.

Well, remember, my statement was a generality. When I first heard the doctrine I mentioned it was in fact the 80s.

Rights-of-way are another complication in the law. The general way of thinking is that if an entity taking ROW abandons it title reverts to the the former owner (or his heirs). It is quite possible in the FL panhandle (with long time family landholdings) that this might happen.

So it's possible that the judge in this case followed a different legal doctrine.

But, one more thing on adverse possession that is pretty much universal:

Adverse possession does not apply to public rights-of-way. The only way to acquire title to land in a right of way is to have the agency concerned vacate said ROW by a vote of its legislative body. If your fence, sign or other improvement in within the ROW when the county comes though to widen the road they will bulldoze said object without any compensation to you. The only exception is your USPS approved mailbox, which will be relocated at county expense.

Isaac Bartram | December 8, 2007, 3:27am | #

Isaac Bartram | December 7, 2007, 2:59pm | #

And, people, please note that is "fee tail" not "tail for a fee" which I'm certain is legal in only one of the fifty states.

The Wine Commonsewer | December 7, 2007, 4:51pm | #

I thought the only place fee tail was legal was Nevada.

As you can see, Mike, I already covered that. Pay attention, for fucks sake. :)

The Wine Commonsewer | December 8, 2007, 3:04pm | #

Oh, sorry. How'd I miss that? I saw the whole exchange around fee tail. [shrugs]

Musta been the wine.

Karl Marx | December 10, 2007, 9:23am | #

Yes Mr. Walker! This is great. The people needed the building so they took it from the owner. If he wants to redevelop his property or sell it that is his problem because the people 'need' it. We should expand this principle to where the people can take whatever they need.

highnumber | December 10, 2007, 8:46pm | #

Anybody else ever notice that Karl Marx is kind of a nutjob jackass?