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03/27/2011: "Bill On Adverse Possession"

It is not uncommon for one land owner to sort of "use" a little -or a lot- of him neighbor's property, sometimes with, and sometimes without the neighbor's permission.

From time-to-time this results in a claim of Adverse Possession (pdf 49\k file) and then a lawsuit between the two property owners is all too often the next part of the story.

A new bill ( House Bill 1026 ) has been introduced to require "clear, cogent and convincing evidence" to prove just because you used it, does not mean you can own it.

The bill passed 95 to 1 in the House on February 23, 2011, to require the higher "clear, cogent, and convincing evidence" standard of proof for some adverse possession claims.

The original bill allows a court to award costs and reasonable attorneys' fees to the prevailing party in an action asserting title to real property by adverse possession if the court decides such an award is equitable and just.

This will permit a court to decide that a party who prevails on an adverse possession claim must pay certain taxes levied on the property that were paid by another party or that went unpaid.

However, on March 25, 2011 an amendment was offered in the Senate to remove the requirement that a person asserting a claim of adverse possession must prove each element of his or her case by clear, cogent, and convincing evidence is removed, and the provision that allowed the court to award all or a portion of the costs and attorneys' fees to the prevailing party in an action asserting title to real property by adverse possession is also removed.