Adverse Possession is NOT an option

Stop talking about it. It is a distraction from the real facts — that the claimant has no claim and may not even exist. Don’t pay any money to anyone who promises a quick fix to your foreclosure problem. It can only be successful if you are willing to engage in a ground war against the foreclosure mills who are trained and paid to evade the technical requirements of law.

I keep getting these emails relating to some idea about using adverse possession as means to defeat foreclosures. It isn’t. I know there are some cases winding their way through the courts, particularly in Hawaii, wherein a trial court used it to allow foreclosure despite a clearly written statute that barred the action.

So this is my attempt to stop both homeowners and courts from even talking about adverse possession. It does not apply to foreclosure in any way, manner shape or form.

Adverse possession in all U.S. jurisdictions means a process of applying to a court for an order granting legal title to a person who had occupied the land of someone else who has legal title. There is no other definition.

As a defense, it does not apply. The homeowner occupied the land and has legal title. The party claiming to be a successor mortgagee or beneficiary does not hold possession.

As an offense for foreclosure attorneys, it does not apply. The supposed claimant has some legal title interest in the land by way of the mortgage but by definition has never had possession. That is the very point of a mortgage or deed of trust.

In foreclosures, there is no possession that is adverse to the interests of any legal title owner. And even if there were the normal required statutory waiting period to even ask for joining title and possession is 20 years after the start of possession that is adverse to the legal title owner.

And for academics who want to research this look up the elements of adverse possession:

  • Continuous
  • Open
  • Notorious
  • Peaceable
  • Hostile
  • Adverse
  • Exclusive
  • Visible
  • Actual

Stop talking about it. It is a distraction from the real facts — that the claimant has no claim and may not even exist. Don’t pay any money to anyone who promises a quick fix to your foreclosure problem. It can only be successful if you are willing to engage in a ground war against the foreclosure mills that are trained and paid to evade the technical requirements of law.

And if you’re confronted by a court that wants to use adverse possession as a vehicle for avoiding other statutes, remind the court that it only has authority to follow the law — not to write it.

One Response

  1. One fix we have touted for years is to depos the bank’s person most knowledgeable with a loaded cheat sheet of questions….especially if there is a statute of limitations acceleration issue. Acceleration is NOT well understood except by academics who study this stuff….but it works.
    Never give up or give in….

    CRD

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