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Involuntary Alienation Basics for the Real Estate License Exam

Sometimes your property can be taken against your wishes, or for some other reason it can be lost. The Real Estate License Exam will ask you about these types of situations, generally known as involuntary alienation. Questions on involuntary alienation will most likely be definitional, so remember the chief characteristics of each of the forms.

Adverse possession

Adverse possession is the loss of your property or some rights to your property because of continued use by someone else. The original owner can lose complete title (ownership) to the property or only a right to use part of the property, such as an easement called a prescriptive easement or easement by prescription.

The basic premise of adverse possession is that someone other than the owner uses a piece of property openly, publicly, and without the owner’s consent for a specified period of time. The conditions necessary to claim ownership under adverse possession are

  • Actual possession: To gain possession, someone has to occupy the property.

  • Adverse possession: Someone usurps the real owner’s rights of ownership.

  • Claim of ownership: Someone lays claim to the property.

  • Continuous use: Someone uses the property without interruption.

  • Hostile: Someone claims the property after using it without the owner’s consent.

  • Notorious: Someone exerts possession that isn’t in secret but rather is well known to other people.

  • Open: Someone’s use of the property is visible and obvious to anyone viewing the property.

In addition, anyone who claims title by adverse possession must do everything required by law during a specified period of time, and laws governing adverse possession vary from one state to the next.

When calculating the length of time someone other than the owner uses the property to claim adverse possession, a concept known as tacking comes into play. Tacking is the ability of a party claiming possession to count or accumulate the necessary amount of the time of possession during the ownerships of more than one owner.

Being awarded title through a claim of adverse possession is not automatic. The person claiming title must file a lawsuit or otherwise initiate an action to quiet title in court. If the quiet title action is successful, the person is awarded title to the property.

An easement by prescription may also be claimed through an adverse use of a property. For example, someone driving over a part of your property every day for the statutory period of time can eventually claim the right to drive across your property forever. If successful in a legal action, that person can be awarded an easement, which is the right to use the property in a specific way.

And just in case you have your eye on a few feet of that park behind your house, most states have rules exempting government lands from adverse possession.

Avulsion and erosion

Mother Nature definitely is a powerful force, even in the world of real estate. She can take away your land in a couple of different ways:

  • Avulsion, or the sudden loss of land, can occur by natural processes, like earthquakes or landslides.

  • Erosion is the wearing away or loss of land through a gradual process.

The opposite of losing land by natural processes is accretion, or gaining land by natural forces. One form of accretion describes gaining property by the natural action of water.

Eminent domain

Eminent domain is the taking of land against your wishes by the government or other public agency, such as utility companies, for public purposes. In addition to the requirement that the land be used for a public purpose, the owner of the property must receive fair compensation, and the authority taking possession must follow due process, or the prescribed legal requirements necessary to take the property.

Foreclosures

Foreclosure is losing your property involuntarily to pay a debt. The most common types of foreclosure are the result of unpaid mortgage loans or unpaid property taxes. Failing to pay back borrowed money or taxes in a timely manner can result in a foreclosure. The lender or community to whom the debt is owed initiates foreclosure proceedings in court.

These proceedings enable the lender or local unit of government to sell the property and collect the unpaid debt from the proceeds of the sale. In most places, homeowners’ associations also have a right to foreclose on a property because of unpaid association dues or common charges.

Forfeiture

You also can lose title to your property by disobeying some condition of the deed, such as using the property for something the deed forbids or not using it for the purpose required in the deed. Properties that were donated to municipalities for use as parks can be returned to their donors for failure to abide by the deed.

Conditions limiting the use of the property can also be written into the deed. If the municipality ever uses the property for any other purpose, the person who donated the property (or that person’s family or estate) can demand through a court action that the property be returned.

Partitioning

Partitioning is a legal proceeding that is undertaken to divide a single piece of property that is owned in shares (in undivided ownership) by two or more people.

Two people who together own one piece of property with two vacation homes is a good example. One owner wants to rent out both units and the other wants to use the units. If the pair cannot agree on how to use the property or how to divide it, one can file a partition proceeding, asking the court to physically divide the property.

If for some reason the property can’t be divided, the court may order the parties to sell the property and divide the proceeds from the sale proportionally according to the respective interests in the property of the two owners.

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