Page 1 of 2 1 2 LastLast
Results 1 to 10 of 17
  1. #1

    Default Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    My question involves real estate located in the State of: Kentucky

    We own commercial property that contained a RR rightway easement. It was leased to a tenant in 1962. That lease was continued under renewal options until 2008. Unknown to us, in 1970 the RR sold the ROW portion of our property to the tenent, creating another parcel. The 1874 condemnation order that the RR used to document their ownership in the 1970 sale to the tenant, was examined by a DC attorney who is specializes in ROW issues. He advised us that the 1874 document granted only an easement for railroad purposes and not fee ownership. The deed to the tenant is for simple fee w/ covenant of special warranty. The tenant used the premises as one parcel and for one business. After the last renewal option expired in 2008, the tenant vacated and erected a fence along the RR ROW line. They continue to occupy the row property and have lease it to a tenant.

    This property has been in our family since 1918, and was passed to me through an inheritance. We have never lived in Kentucky. Can the former tenant now claim the property through adverse posession, even though the RR conveyed an interest greater than what they owned? Has the 1970 "color of title" ripened into fee ownership under the KY statue of limitations? What actions might be available to us? I would really appreciate any knowledgeable advise. Thank you.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    We own commercial property that contained a RR rightway easement. It was leased to a tenant in 1962. That lease was continued under renewal options until 2008. Unknown to us, in 1970 the RR sold the ROW portion of our property to the tenent, creating another parcel.
    I have not found anything in statute allowing a color of title issue to be considered in an adverse possession claim. It could be in case law but have not researched that possibility.

    An adverse possession claim only requires 15 years to ripen so realize that if you use the 2008 date, 4 of those years have already been fulfilled.

    to start with, you should send a demand to cease and desist the use of the land both to the tenant and the claimed owner of the land. That will stall the clock. If they will not leave at that point, you really have no option but to lawyer up. It is likely you will have to initiate a quiet title action to clear the title since the transfer by the RR would create a cloud on the title, even if the current tenants and claimed owners would simply relinquish possession of the property. I suspect they won't leave willingly given the fact so:


    It won't be cheap, it won't be quick but if you want title, you have little choice.

  3. #3
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    I agree with jk's approach in sending a demand letter to vacate. I'd have it sent by an attorney.

    RR title stuff keeps a lot of us busy. It can be quite convoluted and difficult to figure out. I don't claim to have any other advice other than what's been given already. I do have a few observations for how I would begin to view this particular situation.

    The entire documentation creating the initial right of way is very important. You already have a legal opinion from an attorney that it was created as an easement, which would imply it being reversionary upon abandonment. There may be more specific language which would restrict or allow wider use by the railroad. State and Federal statutes and case law can further interpret or modify RR easement rights.

    The lease. This document is also important, especially any description of the leased premises.

    Abandonment by RR. This can occur several ways, but not through mere non-use. As the RR attempted to sell the ROW to a non-railroad, there is a clear (even blatant) act of abandonment. If the easement was reversionary, that act of abandonment would likely trigger the reversion.

    Unfortunately for you, after 42 years there are other concepts than adverse possession which can come into play against you. I would be more concerned with the doctrine of laches at this point. The doctrine is defined as a neglect to assert a right or claim over an unreasonable lapse of time, which assertion was not prevented by other circumstances. Being an absentee owner is unlikely to be a valid defense.

  4. #4

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    Again, the lease to the tenant was executed in 1962 and remained in place, through extension options, until 2008. During that time the premises was entirely controlled by the tenant. Then unknown to anyone, in 1970 the railroad sold the ROW to the tenant and conveyed a fee simple deed w/ covenant of special warranty, creating another lot. Our 1918 description states that our property is bounded by the RR, now it's bounded by another lot. The RR conveyed more of an interest in the land than they owned. The tenant then leased the entire property to a subtenant in 1977. With the property locked up under a lease, there was no possibility to determine what had happed, until the lease expired and the tenants vacated. Only then did they erect a fence separating the ROW portion of the land. The subtenant still occupies the ROW section to this day. I've been advised differently by two local attorneys. One says our action would be with the tenant for ejection and quiet title. And the other advises litigation with the railroad. The 1874 condemnation order has been examined by two knowledgeable attorneys who specialize in RR matters and they both came to the same conclusion. The railroad had only an easement and not fee ownership. Unfortunatly, neither practices in KY. Additionally, the RR maintained a 16' x 164' easement into the ROW in the new deed to our tenant, however the track has long been removed. I really appreciate the responses from my post. Any further coments or suggestions would be very welcome. Thanks again.

    - - - Updated - - -

    Could the 46 year lease be considered a suitable circumstance? Thanks again.

  5. #5
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    the lease simply means that there is no accrual of time for adverse possession during the lease period. While that would remove the claim you are facing normally, the issue with the title transfer screws it up.



    One says our action would be with the tenant for ejection and quiet title. And the other advises litigation with the railroad
    your action would be against whomever is on the property now and whomever is claiming title to that area. The first would simply be an eviction but you may not be successful in that action until the title issue is cleared up. So, that is the second issue; a quiet title action.

    as I said, it would appear you are in the right but this goes deeper than that. The simple fact that deed is on record puts a cloud on your interest. Even if you could remove the subtenants, you still have the issue of clearing the title.

    have you actually reviewed the deed from the RR to your tenant? Are you positive it doesn't transfer only the rights the RR enjoyed in the ROW and not actual title? What type of deed was used to transfer interest in that transaction?

  6. #6

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    This isn't a quitclaim deed that merely transfers whatever interest the railroad owned. It states fee simple w/ warranty of special covenant. Can the railroad convey a greater interest in the land than what they owned? A DC attorney that is a nationally recognized authority, examined the original condemnation order and said that it was merely an easement. Thanks to everyone for your continued interest and support in this matter.

    - - - Updated - - -

    Just to clarify, the 1874 document that the RR used to prove ownership in the 1970 sale of the ROW, wasn't a deed. It was a comdemnation order from the court granting the railroad an easement. The only deed in the former tenants title chain is the fee simple w/ special warranty deed they received from the railroad in 1970. Thanks again.

  7. #7
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    Can the railroad convey a greater interest in the land than what they owned?
    of course not but apparently they believed they held a fee simple interest in the property as opposed to an easement. I do not believe a RR company would even consider selling property they don't own knowingly. It wouldn't be worth the hassle.




    Just to clarify, the 1874 document that the RR used to prove ownership in the 1970 sale of the ROW, wasn't a deed. It was a comdemnation order from the court granting the railroad an easement. The only deed in the former tenants title chain is the fee simple w/ special warranty deed they received from the railroad in 1970. Thanks again.
    so you are still at attempting to eject the current possessor as well as staking your claim against the claimed owner.

    The claimed owner will have an action against the RR company to attempt to recoup their payment. The RR (or a title insurance company) could either simply pay them, attempt to pay you, or provide a lawyer to defend the claim.

    None of it sounds like its going to be simple, fast, or cheap.

  8. #8
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    In 1970 a deed for the disputed area was executed and apparently delivered. If it was recorded near that time (1970) it was actual (not constructive) notice that a right of ownership was being transferred. There is no way for the OP to raise a defense today of ignorance or distance.

    In a suit for ejectment by the OP, the defense I would foresee as most likely is estoppel by laches due to continuous negligence over more than 40 years.

  9. #9
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    even if the deed is defective since there was no ownership to convey?

    and even if the lease in effect until 2008 included the portion now in dispute? It would seem if the lease included the disputed portion, it would be an acknowledgement that the tenant had made no claim to the disputed area.

  10. #10
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Can a Tenant Claim Adverse Possession on Property They Occupied Under a Lease

    even if the deed is defective since there was no ownership to convey?
    None of any of that or the lease terms are important if a court accepts the fact that the OP and his predecessors had notice that part of their property was sold out from under them WITH NOTICE to them and that they slept on it for 42 years.

    The long standing neglect to enforce a right is one of the certain ways to lose the right. That is the doctrine of estoppel by laches. There are a lot of factors to this case, but if estoppel were argued, it could have a major impact. A court is frequently going to take the most direct legal solution and I have a felling that estoppel by laches could be on the radar.

    1. Sponsored Links
       

Page 1 of 2 1 2 LastLast

Similar Threads

  1. Adverse Possession: How to Prevent an Adverse Possession Claim
    By Peach68 in forum Real Estate Ownership and Title
    Replies: 3
    Last Post: 06-01-2011, 12:41 PM
  2. Adverse Possession: Adverse Possession Claim Over a Septic Field
    By Matt Hugo in forum Real Estate Ownership and Title
    Replies: 10
    Last Post: 02-13-2010, 10:23 AM
  3. Adverse Possession: Can I Claim Adverse Possession
    By omalmo in forum Real Estate Ownership and Title
    Replies: 1
    Last Post: 03-03-2009, 01:33 PM
  4. Adverse Possession: Title Claim and Adverse Possession
    By nonny1 in forum Real Estate Ownership and Title
    Replies: 1
    Last Post: 02-07-2009, 08:04 PM
  5. Foreclosure: Property Rights of Owner when Tenant Occupied Foreclosure
    By Legalrights in forum Buying, Selling and Conveying Real Estate
    Replies: 3
    Last Post: 02-03-2009, 01:46 PM
 
 
Sponsored Links

Legal Help, Information and Resources