Sunday, November 4, 2012

Word of the Month for November 2012: Adverse Possession

define definition words law
When I was a kid, my dad would call everything a "gizzy" when he couldn't remember what it was called.  Actually, it was a pretty good method of communicating when everyone is on the same page.  So, a tree could be a gizzy.  The car door, a bush, the cat, an airplane, car keys, a drinking fountain.  The fact of the matter is what's the point of being specific if everyone in the room knows to what you are referring?  I mean, it's all semantics anyway, right?  Well, not so much.  Let me elucidate.
Say, for instance say you bought a piece of property and while you're still making payments on the property, "someone" moves onto the property without telling you.  Let's say this "someone" builds a house, lays down some sod, a fence - the works.  The only problem is that this "someone" doesn't actually own the property, you do.  What we got here is failure to communicate.  "Someone" thinks he owns it, you think you own it - it's all semantics, right?  

In law we call this situation Adverse Possession.  Adverse Possession is a process where a person who doesn't own a piece of property can own it over time by squatting on it.  In California, a person can claim ownership through Adverse Possession (under California Code of Civil Procedure section 749) if their occupation of the property is:
  • Hostile (kick other people off the property),
  • Actual (they live there),
  • Open (people see them living there)
  • Continuous (in California, they live there for 5 years)
  • and they pay the property taxes (as in cold, hard cash)
The problem with adverse possession is if the owner comes back before the prescribed period, the adverse possessor can be kicked off the land and he doesn't
half full empty semantics
get the money back on improvements he made to the property.  An issue of semantics, you think?  Think the adverse possessor got a raw deal?!  Well, to read up on how Adverse Possession works, I suggest you head over to you local county law library and take a look at Powell on Real Property (Lexis).

Let's try another one.  Say you've been sued for not paying a credit card debt.  The problem (you say) is that you've been sued under the common count of money had and received on your "bankcard."  Bankcard?  What's a bankcard?!?  You've got a "credit card."  Since the bank called it a "bankcard" and not a "credit card," you try to file a motion to strike the pleadings because the bank used one term and you used another.  While the court might say it's a case of semantics, you might want to take a look at California Forms of Pleading and Practice (Matthew/Bender) or Shipley's Handbook on Common Law Pleading (West) for more information on all things common law pleading.

The bottom line is that even if you think everyone knows what you're thinking, odds are they don't and won't know what you mean when you say what you think.  Your only recourse is to go to your local county law library because we as Librarians have the inane ability to decipher what you think everyone else should be thinking when you thought they thought what you said you meant when you thought you thought you said it.  Yeah, we are that good!