Daily Development for
Wednesday, March 26, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

SLANDER OF TITLE; ADVERSE POSSESSION; SPECIAL DAMAGES: Title acquired by adverse possession, but not yet established by court decree, is sufficient interest in property to maintain a tort action for slander of title.

Colquhoun v. Webber, 684 A.2d 405 (Me.1996).

After a referee's finding that landowner had acquired title to disputed land by adverse possession, adverse possessor filed second action against trespassing neighbor, which included counts for trespass and quieting title. During the pendency of the litigation, defendant trespasser recorded a frivolous quitclaim deed which conveyed her interest in the disputed land to "each and every citizen of the United States." Adverse possessor amended complaint to include a claim for slander of title. For the first time, the Maine Supreme Court recited the elements of the ancient tort of slander of title: (1) a publication of a slanderous statement disparaging plaintiff's title; (2) the statement was false; (3) the statement was made with malice or with reckless disregard of its falsity; and (4) the statement caused actual or special damages. The quitclaim deed was declared a nullity, and the court held that an interest in land acquired by adverse possession is a sufficient interest to maintain a slander of title action, regardless of whether the adverse possessor had obtained a judicial decree establishing title by adverse possession.

Special damages afforded to plaintiffs included attorney's fees and expenses for removing the cloud on the title, but did not include the legal cost of prosecuting the slander of title action.

Comment: Title by adverse possession is *real.* And it should be. In the bulk of the cases, adverse possession theory simply confirms the true and proper ownership of the property, although the true title cannot easily be proven. Consequently, such title should be defensible to the same extent as any other kind of title.

Laypersons and even lawyers who are not property specialists often question the utility of a doctrine that apparently rewards thieves. Indeed, if the doctrine in fact normally benefitted those who attempt to seize property by stealth or bluster, it likely would not have survived the test of time. Instead, most often there has been some error in description or other misunderstanding that has led the possession of property to differ from the technical description in the title documents. In some cases, the doctrine confirms the parties' true intent. In others, it is a useful tool for resolving ambiguities that otherwise are unresolvable. The editor believes that adverse possession has shown its worth, and ought to be with us as long as fallible creatures, be they human or electronic, prepare conveyancing documents.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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