By Adam D. Schmaelzle, Esq.
Robert Carr, a resident of Ohio has recently come into the limelight with his mischievous attempts to file a quiet title action on the properties of homeowners who have been away from their houses. Supposedly, Mr. Carr put together a team of individuals that would roam around the city looking for houses with their lights off. Once a house was discovered to be “empty”, the team would gain entry into the house, change the locks, place no trespassing signs on the windows and doors and file a quiet title action with the court. After nearly a dozen instances linked to Mr. Carr, the media finally caught up with him after he gained entry to a woman’s house by pushing in her air conditioning unit while she was away visiting her sick father.
After being confronted about the situation, Carr told one reporter, “When you abandon something you forfeit all your rights and title to it and title is not a piece of paper, title is when you grab it and say mine,”
After reading the article, my first instinct was the same as what the majority of the people who have commented on the issue had. Anger. Who wouldn’t be angry at a man who breaks into the homes of anyone who leaves for more than a few days in an attempt to take possession of their property. However, I couldn’t help but recall a case I had learned from my law school property teacher. The case involved a man named Darren Miller who cleverly slapped a fence around about ten acres in Brooklyn New York, and set up a business on it without any ownership to the land. After 10 years, the city of New York attempted to evict him to which he responded in the same way that Mr. Carr responded. With an action for quiet title. Keep in mind that I was learning the general rules of adverse possession during the same time that I was learning about Darren Miller’s case. I had learned that the purpose of adverse possession was to correct title flaws and encourage the usage of property by punishing anyone who failed to defend or maintain her property rights. This made sense to me because there is a limited amount of space in the United States. Each generation produces more and more people who require more and more land.
If one decided to up and leave their property for enough time, someone else should be able to claim that property and use that space, rather than just allowing it to rot until the end of time. With this in mind, the government created one major rule and 5 general elements to satisfy in order to claim adverse possession. Now, the major rule is that the adverse possessor must satisfy the 5 elements for at least a specific statutory amount of time, and each state is different. The rules on the 5 elements also vary from state to state, however they generally require the same things, and those differences do not seem to apply to this article. This is where things get sticky. At least in Mr. Miller’s case. The first element requires that the adverse possessor, i.e. the one trying to claim the property………i.e, not the owner, must have actual possession of the property. Which means that the adverse possessor must use that property in a manner that is typically used for that specific piece of property. For instance, if it is a house, the adverse possessor must live in it. If the land is generally used for hunting, the adverse possessor does not necessarily need to live on it, she merely needs to show that she hunted on it to satisfy that element. The parcel that Mr. Miller attempted to take ownership of was owned partly by the city of New York after obtaining it through condemnation in 1968, partly by a private developer, and don’t quote me on it but if my memory is correct, partly by home depot. Nevertheless, the land would generally have been categorized as being commercial. After putting up his fence in 1995, Mr. Miller started charging truck drivers a fee to park their rigs on that lot overnight, which would clearly be a usage of business.
The second element requires the usage of that parcel of land to be hostile or adverse to the property owner. The short explanation of this (without getting into a marathon long legal discussion about the different views on bad-faith and mistaken beliefs) is that the use must be non-permissive. So if at some point, the city of New York, along with any of the other owners of that parcel of land decided grant Mr. Miller permission to use that land in Brooklyn, he would have not been able to satisfy that second element. That is unless his permission was at some point revoked, and he continued that use beyond the statutory period of time. Instead, Brooklyn’s Housing Preservation and Development sent Mr. Miller a letter in 2005 (the year he put the fence up) saying that he was illegally occupying the property. Instead of leaving, Mr. Miller stayed and continued to run his concurrent albeit illegal business.
The third element requires the adverse possessor to use that parcel of land openly and notoriously. This is probably the easiest element to satisfy, and this is where you start to see the way Mr. Carr is thinking. To be open and notorious one must use that parcel in such a way that would make her use obvious to the true owner. This can be done by putting up “no trespassing” signs, placing a fence around the property, closing off an entry to the property or simply giving the owner actual notice. In 1995 Darren Miller put up a fence around that parcel of land in Brooklyn, NY complete with “No trespassing” signs and a blocked entry.
To satisfy the fourth element, the use of that property must be continuous. This would mean that there cannot be long gaps in time where the adverse possessor is not using that property in the manner it was intended. This rule has several different caveats but none of them would apply here. In Darren Miller’s case, he was able to show that he ran his business continuously from 1995 to 2005.
The fifth and final element simply requires the adverse possessor to show that she was exclusively in possession of that parcel of land for the entire statutory period. Darren Miller exclusively ran his business from 1995-2005.
So with regard to Mr. Miller it seemed at least from my perspective that he was able to satisfy each of those 5 elements. The only requirement remaining was whether he could satisfy New York’s statutory time period, which at the time was 10 years. Darren put up his fence around someone else’s property in 1995. He was told then to leave the parcel, but instead stayed behind and posted “no trespassing” signs. He continuously and exclusively ran a business on that commercial parcel until 10 years later, in 2005 when he was arrested for trespassing, illegally dumping toxic waste, and dismantling cars without a license all on the land he was attempting to take ownership of. So by my count, Mr. Miller was able to satisfy that statutory time period, and all 5 elements. All he needed to do was file a quiet title action and take ownership of his property. Thats what I learned in law school at least. But he didn’t get ownership. Instead, he was thrown into jail 10 years too late. Not that I was sympathizing with Darren Miller as a person for illegally taking possession of someone elses property, but as a law student I couldn’t understand how certain laws could be put into place to promote certain privileges or prevent certain outcomes, and then disallow a citizen from exercising his rights to use those privileges. The only thing I really understood was that the State of New York realized that Darren Miller was within minutes of acquiring a parcel of land worth almost $200 million for nothing, and after 10 years stepped in to fine Mr. Miller to every extent of the law for illegally dumping hazardous material, raising the land without permits to support the weight of larger trucks, and having too many tires around. Fines that would undoubtedly make it impossible for Darren Miller to afford the cost of litigation, let alone keep his land.
The reason I bring up this discussion of Darren Miller’s case is because I think it is the easiest way to explain the situation going on with Robert Carr. With money not being a factor, Mr. Miller should have, at least in my opinion, acquired that parcel land in Brooklyn New York by adverse possession. The State of New York did not effectively remove him before the statutory period of time was satisfied. Thus, the intent of the legislation (allowing someone else to take claim of a property, rather than letting it sit and rot until the end of time if the true owner fails to defend or maintain her rights to that parcel of land) was failed as a matter of fact. With regard to what Robert Carr has done on at least a dozen other instances, the intent of the legislation has been upheld as a matter of law.
Mr. Carr attempted to satisfy the first element by living in one of the homes he was filing quiet title on. It isn’t possible to continuously live in 12 homes at one time, and therefore both the actual and continuous elements (1rst and 4th) would fail. It is obvious that his use of those homes was non-permissive because he had to break into those homes to gain entry. Mr. Carr effectively satisfied the open and notorious element by changing the locks and posting no trespassing signs on those homes. However, it would be difficult for him to show that his use was exclusive since he uses a team to locate and enter those properties. Finally, the statutory period of time for adverse possession in Ohio is 21 years, which clearly has not been satisfied. So again, as a matter of law, Mr. Carr went onto a property in an attempt to adversely posses it at the risk of being criminally charged. Those individuals who’s property he was taking effectively defended their property rights and Robert Carr was arrested. That there is what we call justice.
Ironically enough, the state of Ohio enacted a statute in 1953 designed to prevent this exact situation. Chapter 5309.89 of the Ohio Revised Code states that: No title to registered real property in derogation of that of the registered owner shall be acquired by prescription or adverse possession………..Bummer.
1: Ohio Code: