This land is my land, this land ain’t your land

PANAMA CITY, Fla. – Jan. 8, 2008 – A cautionary tale from Colorado should be a wake-up call for Florida property owners – and spur them to embrace the maxim of “use it or lose it.”

As first reported by Denver Post columnist David Harsanyi, Boulder couple Don and Susie Kirlin in the early 1980s bought a piece of land just 200 yards from their residence, intending one day to build their dream home on it. Raising a family took precedence, though, and delayed their construction plans until 2006.

When they went to develop the land, however, they discovered to their horror that their neighbors had stolen it – fair and square.

Richard McLean, a former district judge, and his wife Edith Stevens, an attorney, employed an old, common-law principle known as “adverse possession” to claim the land as their own, even though the Kirlins had paid property taxes and homeowners dues on it for more than 20 years. When McLean and Stevens, who lived nearby, saw the Kirlins attempt to erect a fence on the 55-foot-by-80-foot plot, they filed a temporary restraining order. They said the land belonged to them under adverse possession, which requires a person to use their property in a way that indicates obvious and exclusive ownership for a required length of time that varies by state. In Colorado, that is 18 years (in Florida, it is seven).

The judge and his wife argued that they had used part of the property for years, walking their dogs on it, creating trails and holding political fund-raisers there. The Kirlins said they were unaware that McLean and Stevens were using their property. But under the law, because the Kirlins did not explicitly prevent the other couple from trespassing, over time the judge and his Mrs. could take possession of it. Last October, a district judge awarded them one-third of the lot, which its owner values at $1 million.

Late last year, the Kirlins went to court to hold on to what they understandably believe is rightfully theirs. Attempts to negotiate a compromise settlement have fallen apart. How that case eventually concludes matters little to Florida. What’s important is the lesson it teaches.

I spoke with a prominent, veteran Bay County property attorney who said he can’t recall a situation similar to the Kirlins’ happening in this area. He said most of the local adverse possession cases he’s aware of have been pretty cut-and-dried – the land in question had clearly been abandoned for some time, and the claim against it wasn’t contested. At most, he said, they involve minor boundary encroachments that stem from a neighbor’s ignorance of property lines.

But the Boulder brouhaha should make everyone sit up and notice. Owning private property is the foundation of a free society. If the government can tax it away or seize it via eminent domain, individuals don’t truly own anything of value. That’s why it’s vital that citizens be vigilant in checking government power. Even though it may be rare, the Kirlin case demonstrates why that vigilance must also extend to your property’s borders.

That can be as simple as taking responsibility for it – walk the land regularly, inspect it. That’s the best way to ensure that nobody is trying to take over your property. If you suspect someone is using it, you can put up a fence to keep them out or post “no trespassing” signs – that indicates diligence to protect the land. Or, you could grant them written permission to use it, which removes their opportunity to claim it as theirs under adverse possession (and thus avoids a repeat of the Boulder situation). The Kirlins testified that they never visited the area of their lot the judge and his wife said they used.

This may be old hat for lawyers – the concept of adverse possession dates back centuries to English common law and is taught to first-year law students. But for everyone else who owns property, it’s a reminder that sometimes if you snooze, you lose. Know your individual rights and guard them fiercely.

Copyright © 2008 The News Herald, Panama City, Fla., Scott. Distributed by McClatchy-Tribune Information Services.

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