A Stolen Strad and Squatter’s Rights

Whitman Legal Solutions, LLC

Whitman Legal Solutions, LLC

The relationship between a violin and the violinist who plays it[1] is a close one. They spend many hours together in close physical contact, and just as the violinist grows and changes playing the violin, the violin reacts to the person playing it and adds that performance to the violin’s history.

Such likely was the case with violinist Roman Totenberg with his close companion, the Ames Stradivarius.[2] Having been made in 1734, the violin already had a history spanning nearly 250 years, 38 of them with Totenberg when, in 1980, the violin was stolen from Totenberg’s office in Cambridge, Massachusetts.[3]

Although there were suspicions that an aspiring violinist named Phillip Johnson was the culprit, the theft would remain unsolved for more than 35 years. Philip Johnson went on to less-than-spectacular music career. Then, on June 26, 2015, after Phillip Johnson’s death, his ex-wife found the Strad when she was cleaning out the attic of items Johnson had left to her.[4]

Since the violin had been stolen, it was returned to the owner, which eventually was returned to Totenberg’s grateful children. After all a violin thief does not gain title merely because he has possessed the violin for a period of time.

With real estate, however, there is the possibility of someone who unlawfully uses someone else’s property gaining title through “adverse possession,” which is commonly also referred to as “squatters rights.”

What is Adverse Possession?

Adverse possession is an ancient legal concept, going back at least to ancient Roman law, but the US concept of adverse possession comes from English common law. The concept of adverse possession has been part of the law in the US since Colonial days.

Although specifics vary from state to state, generally, to take title to real estate via adverse possession, generally one must demonstrate the following:

1.       Physical possession of the land in a continuous manner. This might require building and occupying a structure, planting and harvesting crops, landscaping, building a fence, or other indications of ownership. Simply occasionally visiting the land and walking around or hunting on it is not enough, even if done repeatedly.

2.       Hostile to the Ownership. This does not mean that there must be hostility in the form of anger or dislike. Rather, hostile possession is possession which is not done with the owner’s permission. Possession under a lease or rental arrangement or pursuant to a license or easement or even with verbal permission does not result in a right of adverse possession.

3.       Open and Notorious. The use of the land cannot be secret or hidden. It must be readily discernable, as in the situation where a structure is built, the land is fenced, crops are grown and harvested, or other easily visible signs of ownership.

4.       For the Required Period of Time. This use of the land must continue, uninterrupted, for a prescribed length of time. Traditionally, that was 21 years, but today, each state has its own time period, which ranges from five to 30 years. In the DC Metro area, the District of Columbia and Virginia both require 15 years of continuous and interrupted possession of the land, whereas, Maryland requires 20 years.

Additional Requirements for and Limitations on Adverse Possession

States also have a variety of additional requirements or limitations on when a party can claim adverse possession of real estate. These vary from state to state, but some of the more common ones include:

Color of Title – Some states have a shorter adverse possession period for persons who occupy property under “color of title,” meaning that they mistakenly believe that they own the land, typically because they have a deed granting it to them.

Paying Taxes -- In some states, paying real estate taxes for the land may shorten the adverse possession period or may even be a requirement for adverse possession. In other states, both color of title and paying taxes is required.

Construction or other Improvements of the Land – In some states, construction or fencing of the land or cultivating or other improvement of the land might be a requirement to the exclusion of other possession (e.g., squatting in a residence already located on the land). In others, it is likely to be indicia of open and notorious possession, but not a specific requirement.

No Bad Faith – There is a concept in the law that states that a thief cannot pass good title. This applied in the case of the Ames Stradivarius, and a similar concept is used in some states for adverse possession of land. In those states, an individual who sets out specifically to claim another’s land by adverse possession cannot take title via adverse possession.

Registered Land is Exempt – Some states have land registration, which results in certificates of title much like the title received for a motor vehicle. Land registered in this manner usually is exempt from claims of adverse possession.

Government-Owned Land is Exempt – Generally, adverse possession does not apply to land owned by the government. This frequently will apply to rights-of-way, easements, and other interests in land granted to the government.

Same Person – In some jurisdictions, adverse possession may not pass from one person to another by death, nor does it run with adjacent land. For instance, in Maryland, if someone owns a house and has built a fence onto the neighbor’s land, the right to adverse possession will not pass to a new owner of the house unless it is expressly conveyed by deed (which rarely occurs).

Gaining Title from Adverse Possession

Once someone satisfies the requirements for adverse possession, he or she still will not have title in the state or county real estate records until he/she “quiets title” on the land. In an action to quiet title, someone claiming title to land files a lawsuit asking the Court to declare him/her the sole owner of the land. Actions to quiet title may be filed in a number of circumstances, including to resolve boundary disputes, to clear up improper conveyances by deed or issues in estates with missing heirs, and of course, in the case of adverse possession.

The process for actions to quiet title varies from state to state, but typically, they involve filing a lawsuit against the actual legal owner of the real estate. Assuming the legal owner disputes the adverse possession claim, there may be a trial at which the party claiming adverse possession will need to produce evidence proving his/her claim.

This proof might be a receipt for a fence, along with proof that the fence has remained in place for the required period of time. Or, it could include witness testimony about the occupancy. Since memories fade and many people do not retain written documents for 15-20 years, it can be difficult to prove adverse possession claims.

Protecting Your Real Estate from Adverse Possession Claims

Although it may not be easy for someone to acquire ownership of land by adverse possession, real estate owners still should take steps to protect their assets.

Put it in Writing. It may seem like overkill to ask for a written agreement when allowing someone to plant a garden or make other regular use of one’s property. However, even a letter or email documenting that the owner has consented to someone else’s use of property can go a long way in preventing a later claim of adverse possession. Better yet is a document recorded in the county real estate records, so it cannot be lost. A real estate attorney can help with that.

Insist on a Survey. Obtain a survey before building or installing a fence, storage shed, pool, major landscaping, or other improvement to real estate. This will assure that the owner has property placed the improvement on another person’s property. Having the land surveyed and boundary makers placed can also help an owner to quickly identify encroachments installed by others.

Be Vigilant. Be on the lookout for possible encroachments. If a neighbor builds a fence, be sure that it is entirely on the neighbor’s property (this is where the survey and boundary markers can come in handy). Take action if someone else appears regularly to be maintaining or using your real estate. Either stop that behavior or work out an arrangement so that the use is with the actual owner’s concern – and again put it in writing!

As Robert Frost quoted in his poem The Mending Wall, “Good fences make good neighbors.” This is true when it comes to adverse possession. With attention, diligence, and the help of a professional surveyor and a real estate attorney, real estate owners can prevent encroachments or catch them early. In so doing, they not only will protect their valuable real estate investment from adverse possession claims but also will minimize disputes so that they maintain good relationships with their neighbors.

[1] Although violins are, under law, owned by someone, in the violin world, it is more common to view the violin as being “in the possession” of the violinist, who acts as a temporary custodian of the violin and adds to its history.

[2] VIOLIN GEEK NOTE: Many string instruments made by the great masters become known by the name of a great violinist who played them. The Ames Stradivarius was named after a 19th century violin virtuoso named George Ames. Sadly, Ames’ legacy appears largely to be the instrument he once played, as he otherwise is not well-known.

[3] “Strad Valued at $250,000 Stolen, Sarasota Herald-Tribune, May 16, 1980.

[4] Nina Totenberg, “A Rarity Reclaimed: Stolen Stradivarius Recovered After 35 Years,” Morning Edition, NPR August , 2015. Ms. Totenberg is the daughter of Roman Totenberg.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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