Daily Development for Monday, August 2, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ADVERSE POSSESSION; VALIDITY; SUBDIVISION REGULATION:: The fact that the disputed property is part of a platted lot does not defeat an adverse possession claim nor does a subdivision statute bar an adverse possession claim.

Wanha v. Long, 587 N.W.2d 531 (Neb. 1998).

Neighbor One brought a quiet title action against Neighbor Two, whose property included a wedge-shaped piece of property along the parties' true, platted boundary line. Neighbor One claimed adverse possession of the wedge-shaped parcel. Neighbor Two defended the action by arguing that platted and subdivided land within a municipality cannot be adversely possessed and that the adverse possession claim altered the boundary lines of a platted lot within the city of Omaha limits and thus constituted an unauthorized subdivision of land in contravention of Nebraska law.

The Nebraska Supreme Court held that, so long as the incidents of adverse possession are complied with, platted land is no less subject to adverse possession than unplatted land. The court noted that to hold otherwise would defeat the historical and general application of the doctrine.

The Nebraska Supreme Court also rejected the argument that adverse possession constituted an attempt to "subdivide, plat, or lay out . . . real estate . . . without first having obtained" proper approval under Neb. Rev. Stat. 14-116. The court noted that 14-116 applies only to the subdivision of property by its owner. The court held that until the period of limitations has run on the adverse possession claim the property is not owned by the adverse possessor and once the period has run, there is nothing left for the adverse possessor to do to gain title to the property. Therefore the court held that 14-116 has no application to the doctrine of adverse possession and is not in conflict with it.

Comment: The theory raised by the true owner was a thoughtful one, but the response of the court is certainly correct on the theory of adverse possession. Unfortunately, the response does not address the real issue at stake here: the dueling policies of adverse possession and public land use controls.

Although subdivision concepts once were used simply as descriptive devices, they have long since been coopted by land use planners as critical tools for growth management. Public subdivision control not only protects the public interest in land by insuring that lots are of an appropriate size and shape, but also provides an opportunity for planners to insure that each new land parcel has adequate access, utilities service, drainage, and other characteristics necessary for proper development. This, of course, is in addition to the more controversial use of subdivision law as a device to exact additional contributions from private landowners to the public coffers as the price for intensifying the use of their land.

Adverse possession law is a common law doctrine rooted in public policy notions of maximizing utility of land and suppressing disputes over land boundaries. But the doctrine is not Constitutional in nature. State law certainly could override it. And the random size and character of parcels created through adverse possession clearly is inconsistent with the planning objectives served by many subdivision ordinances. The editor would not find it startling if a court somewhere should conclude that adverse possession claims are subject to subdivision regulation before they can be confirmed. Courts are certainly capable of reading the language and intent of some subdivision ordinances to reach parcels reshaped through adverse possession. Such a result simply would place a higher value on the legislative goals set forth in subdivision ordinances than on the goals served by adverse possession.

Although the editor would not be surprised to see such a result, this does not mean that the editor advocates it. Most subdivision laws treat rather lightly a simply lot division such as those normally effected by adverse possession. The policies behind subdivision regulation normally are not heavily implicated in such cases. Therefore, it probably is best to leave the common law policies in place until such time as a legislature determines categorically that land use planners can regulate adverse possession claims.

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 Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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