When you consider all the types of personal property you might own, real estate would have to be considered one of the most unlikely to be stolen from you. The truth is it is relatively easy to do and the law condones it. The legal statute, called adverse possession, is an ancient English common law established for an agrarian society to help insure farmland was used to its fullest capacity, thereby benefiting the overall community. In simplistic terms, if one landowner was not utilizing a portion of their land, a neighbor could occupy it, put it to productive use, and ultimately claim it if certain conditions were met.
In today’s modern, non-agrarian economy the statute serves no purpose except to allow unscrupulous individuals to legally “steal” from innocent, unsuspecting land owners. Incredibly, the statute remains on the books of most states today.
The law in New York State essentially says that any individual can claim the land of another provided they have exclusively, continuously and openly occupied and maintained the property for ten years. This turned everything I thought I knew about American justice upside down - the victim is punished and the thief rewarded.
Our nightmare began in 2001 seven years after we moved into a two-bedroom bungalow in Pound Ridge, New York. While considering a small addition on our house, we became aware that our neighbor's fence did not follow the true boundary line. The encroachment was significant depriving us of 30 feet or more of our pond frontage. Surprisingly, our 1994 land survey required by the bank when mortgaging the house did not recognize it! For years we just assumed the fence was in its proper place.
We promptly informed our neighbors, Ron and Patricia Lee, by certified letter and in a neighborly gesture gave them permission to leave the fence where it was, at least for the time being, but made it clear that we did not relinquish our right to that land. This is considered an inexpensive, yet effective way in some states of terminating the statutory period necessary for adverse possession. Some jurisdictions recommend using a process server, rather than mailing it.
Their response came two years later in a terse letter stating they would "fully assert their right" to our land through adverse possession. They noted that our 2001 correspondence was inconsequential since their fence was allegedly erected in 1988 and the ten-year statutory period had already been met.
ANTI UP IF YOU WANT JUSTICE
We soon found that seeking justice is a frustrating game and that if you are not willing to ante up lots of money you cannot even play. Wealthy individuals like the Lee's leverage this to their advantage. For people like us without great wealth, the daunting prospect of a long court battle and associated legal fees can be intimidating and demoralizing. The wheels of justice turn slowly while your attorney fees rise. Fighting for what is right is not always a wise choice, particularly when you still could lose in the courts.
After failing to get any support from our title company, Continental Abstract Corporation, and the Town of Pound Ridge we reluctantly secured a lawyer. Her first call to the Lee's attorney was met with a veiled threat of years of litigation facing us and tens of thousands of dollars in legal fees if we challenged his client's claim to our land. One look at our humble abode would indicate we did not have the financial means to fight this for long. Though incensed by the threat, we begrudgingly proposed a property line agreement that would allow them to keep the fence in place so long as they both owned their home. If they died or sold the house, the fence would be returned to the proper line. This was curtly refused. They arrogantly wanted nothing short of outright ownership.
We wondered what could motivate people who had so much to want even more at the expense of their neighbors. Particularly, when you consider that their upscale home was just one of their weekend getaways.
Finally after writing several letters to the Lee's demanding the fence be removed, we were served with a court summons and a restraining order preventing us from touching the fence or from using this portion of our land.
Now that the dispute was in the courts, our title insurance company, Ticor Title Insurance, was obligated to represent us. Although we had already spent thousands of dollars for our personal attorney, we now had a powerful national organization behind us and hopefully no more legal fees. We soon found that the attorneys for the insurance company were not the super heroes we envisioned. Their principal interest was to minimize their labor and expenses. Ticor felt the Lee's could win and faced with years of potential litigation, they wanted to make a settlement.
PERRY MASON IS DEAD
We expressed to Ticor that we had reason to believe that the previous owner of our home, Lenore Schattner, now deceased, was best friends with the neighbors suing us. If this were true and could be proven, the Lee's could not claim hostility for the full statutory ten-year period. Sure there was hostile intent toward us for seven years, but they needed to prove they also had malice toward Schattner for three years. How could this be possible if they were good friends?
Ticor's large staff of attorneys and legal assistants could surely dig up some substantiating evidence. But, to our astonishment, they did not consider this to be their responsibility. They insisted it was our job. I grew up idolizing Perry Mason and others TV counselors who tenaciously turned over every stone until justice prevailed. Now we found ourselves being represented by what appeared to be a legal team of corporate slugs. We had two choices: Try to get evidence on our own, or pay for a high-priced attorney like Johnnie Cochran or F. Lee Bailey. We resigned ourselves to the former.
THE WEB TO THE RESCUE
After four years of going nowhere, the Internet offered the first glimmer of hope. A Google search for "Lenore Schattner" quickly began to bear fruit. I soon uncovered where and when she died through the Cornell University alumni web site where she attended school seven decades ago. This led to the New York Times web site where I found Ms. Schattner's obituary. What I discovered exceeded anything I could have fabricated in my mind. It said Schattner was survived by "her surrogate children" - the same two people suing us! How could the Lee's claim of adverse possession be deemed hostile?
The obituary also listed Englewood, N.J. as her place of birth so we gambled and paid for a researcher to visit the Bergen County Surrogates Court to see if her Will was on file. Sure enough it was and guess who was listed as the Executor? That's right - one of the Plaintiffs, Ronald Lee. His wife is referred to as Schattner's "dear friend." Furthermore, the Lee's five children were listed as beneficiaries.
THE ELUSIVENESS OF JUSTICE
Now even the insurance company thought we could win. We filed our opposing court papers and although we could not get it thrown out of court, the judge was duly impressed with the evidence and we would go to trial. But money and its intimidating power is what rules our justice system, and the Plaintiffs have plenty of it. Although the Lee's realize they stand little chance of winning, they are arrogantly threatening to continue with a long, drawn out, expensive court proceeding unless the insurance company gives them $10,000. To our chagrin, it appears Ticor will cut its loses and pay the "extortion" money. We may get our property line restored to its proper place, but has justice prevailed when the bad people profit? Sadly, I think not. Justice is often dispensed according to wealth. The winner is usually the one who is willing to throw the most cash on the table. It's a cruel poker game and you can't play if you don't have money.
