Legislature(1997 - 1998)
02/20/1998 03:40 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 286 - ADVERSE POSSESSION
CHAIRMAN HALFORD announced SB 286 to be up for consideration.
MR. DAVE GRAY, Staff to Senator Mackie, sponsor, said SB 286 was
introduced to bring attention to the State's current laws governing
adverse possession of private property and its suitability to land
ownership and to modern advances in the location, description, and
recording of private lands. The legislation addresses two
conditions of adverse possession. The first is the "squatter"
situation where a person knowingly and with intent occupies another
person's property. After ten years of use, the occupant can claim
ownership by adverse possession under current law. In addition,
there is no compensation to the real owner for his or her loss.
In the second instance, the person's occupancy of the property is
under a good faith belief that they have clear title or other
documentation establishing their ownership. This instance also
includes the adjacent property owner who mistakenly locates on
neighboring land. In each situation, the property can be claimed
after seven years of adverse possession.
Much of the private land in the State is now located in remote,
wilderness areas of the State because of the ANCSA settlements and
other properties associated with historical mining activities.
Because of their remoteness, these properties are more subject to
inattention by their owners and therefore susceptible to adverse
possession. SB 286 proposes to eliminate any adverse possession
claim by a person who knowingly and intentionally occupies land
they do not own. When the occupancy is inadvertent, the
legislation increases the standards for adverse possession. In the
latter case, the original owner must be compensated.
MR. RICHARD HARRIS, Sealaska Corporation, said they are the largest
private land owner in Southeast Alaska. He said the adverse
possession doctrine was born in the middle ages and has little
applicability to the 20th Century. State and federal lands cannot
be divested of title through adverse possession. Neither can
native corporation lands that are in an undeveloped state.
However, all private lands, including ANCSA lands, if they are in
a developed state, are subject to adverse possession. Sealaska has
had some direct adverse possession experience with its non ANCSA
lands and is aware of other private land owners with similar
problems.
The "squatter" statute requires the squatter to possess the
property for 10 years and, thereafter, the actual owner of the
property is barred from either bringing any action against that
individual to throw them off the property or to seek any
compensation. You effectively lose title to your property. The
other type is the "color of title" which is an honest belief that
the possessor really owns the land.
The State Supreme Court has stated the doctrine serves a useful
public purpose. If the owner leaves land idle, it should be put to
some beneficial use and if it is done by a squatter, so be it. The
court also justifies adverse possession because it keeps stale
cases out of court. Neither of these justifications keeps cases
out of court, Mr. Harris said.
SB 286 abolishes the squatters statute, though it reserves any
rights a person has acquired under the law before it was abolished.
It also limits the availability of this doctrine to two narrow
circumstances where there are arguable good policy justifications
for allowing adverse possession. There is a good public policy
qualification for a situation where the property owner in good
faith occupies the property beyond the boundaries. After 20 years
of open adverse possession the possessor could acquire quiet title
to the property. It has to be done in a good faith manner and the
possessor must prove entitlement and pay the land owner. The
payment makes it equitable.
It is very difficult to police lands when they are in large remote
areas to assure yourself that no squatter has taken residence.
They have had experience that even though the squatter has taken
residence, the difficulty of moving people off a property is also
very frustrating and quite time consuming. The Attorney General's
Office indicates that under some circumstances this might create
new litigation or may place additional burdens on the court, but
they agree that this is speculative and there is no evidence to
support this.
SENATOR TORGERSON asked how this would affect rights-of-way or
roads that are built on other properties that have been there for
a number of years.
MR. SORENSON, Council for Sealaska, answered that any interest that
has been there for over 10 years would not be affected by this
legislation. Up until 10 years, however, the Supreme Court rules
that it is trespassing.
SENATOR TORGERSON asked if they had squatters on their land.
MR. SORENSON answered yes, one in Cordova which has been taken care
of. They tried to sell land that people were squatting on to the
city of Cordova and finally, in order to clear the title for
transfer of title, they had to buy someone off. Another
circumstance happened near Wasilla with a squatter. They see this
occurring in various locations.
SENATOR TORGERSON asked if they were grandfathering anyone in under
this legislation.
Number 230
CHAIRMAN HALFORD said the answer was no unless there was a
perfected right.
SENATOR TORGERSON asked if there were any notice requirements.
MR. SORENSON answered no. He added if a land owner discovers that
someone is using their property, there is the right to give them a
notice to quit under the statute, and then you can bring an action
for unlawful detainer or ejectment. This is a straightforward
procedure. From the possessor's standpoint, their actions have to
be fairly open and notorious.
SENATOR SHARP asked if the squatters were on the land when it was
acquired in the instances in Cordova and Wasilla.
MR. HARRIS answered in Cordova the property was used frequently by
the summer people coming in and processing fish in a camp. Out of
that there were people beginning to establish year-round occupancy,
so they were able to claim they were in possession of that
property. They went through several efforts to evict which was
very awkward and difficult. They ended up buying one person off
before they could trade the land to the city. He said the 10 years
doesn't run against any one particular owner; it's a continuous 10-
year period.
CHAIRMAN HALFORD said that action has to have been taken before 10
years; you don't actually have to get them off.
MR. HARRIS agreed that was correct.
SENATOR TORGERSON asked what the impact would be on the University,
the Railroad, and municipal governments.
Number 300
MR. HARRIS replied that it wouldn't affect any land except private
lands. There is a specific statute that says the title to
University land cannot be gained through adverse possession and
another specific statute that says municipal lands are not subject
to adverse possession.
CHAIRMAN HALFORD said he didn't know of any western state that has
eliminated adverse possession. There are differences in the number
of years it requires. He thought it was legitimate for people who
own land to be able to get people off the land they own, but the
adverse possession rule came from one of the basic tenets of
ownership which is control.
MR. HARRIS said he was right that Alaska would be the first state
to take this kind of action.
CHAIRMAN HALFORD said he was interested in looking at ways to make
this work, but the laundry list on page 2 was so complete that he
couldn't think of a single thing to add to it to make sure it
didn't happen.
MR. CHARLES MCKEE said he wished they would have noted that this is
common law they are discussing and opposed SB 286.
CHAIRMAN HALFORD noted that although this is based on common law,
there are two Alaska statutes that deal with adverse possession.
He said he would talk to the sponsor to see if there was something
that could help with regard to enforcement actions that would be a
little bit less extensive than the list on page 2.
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