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The Neolibertarian NetworkOutrageous Fortune
Last year as I was promoting I-154 there was no shortage of people telling me that the risk to community was not within the power of government players but at the hand of “profiteers” that would hold municipal and county governments hostage. I made the point then that there was no shortage of examples of mischievous public officials that have gamed the regulatory environment for personal profit.
Although what David Harsanyi writes about is different than your typical regulatory taking, it shows how connections and power can be used to hurt the unwashed.
The story is so absurd, so unfair, so ludicrous, I had a difficult time believing that it could actually happen – even in Boulder.
It’s about a couple named Don and Susie Kirlin. They moved to the city in 1980. A few years later, the Kirlins purchased a plot of land near their residence, hoping to someday build a “dream home.”
“We took advantage of the market in the early ’80s,” says Susie Kirlin, almost apologetic for making a smart investment.
[...]
Despite owning the land, despite living only 200 yards from the property, despite hiking past it every week with their three dogs, despite spraying for weeds and fixing fences, despite paying homeowner association dues and property taxes each year, someone else had taken a shine to it. Someone powerful.
Former Boulder District Judge, Boulder Mayor, RTD board member – among other elected positions – Richard McLean and his wife, attorney Edith Stevens, used an arcane common law called “adverse possession” to claim the land for their own.
All McLean needed was to develop an
“attachment” to it.
Undoubtedly, his city connections couldn’t have hurt, either.
In the court papers, McLean and his family admit to regularly trespassing on the Kirlins’ property.
They created paths. They said they put on a political fundraiser and parties on it (though not a single photograph of these events surfaced in court documents).
This habit of trespassing developed into an affection.
If we take McLean at his word, he should have been treated appropriately: like a common criminal. Instead, the former judge demanded a chunk of the land for himself – and implausibly he got it.
[...]
When the couple began building a fence on the land – which is within Boulder city limits, not out in the wilderness – McLean was able, according to the Kirlins, to obtain a restraining order in an exceptionally speedy 2 1/2 hours.
Boulder District Judge Morris Sandstead, who served with McLean, issued the restraining order quite swiftly.
Serendipity, I guess.
All of this adds up to District Judge James Klein ordering the Kirlins to sign over about 34 percent of their 4,750-square-foot lot to McLean and his wife last month.
“Now the lot is just about worthless,” explains Don Kirlin. “We estimate the land was worth about $800,000 to a million dollars. Now, we can’t build anything on it.”
Surely, that was the goal.
To add insult, the case, which the Kirlins are appealing, has cost the family over $100,000 in legal fees.
Outrageous!
The information on this site is not intended as individualized investment advice and all investment decisions by a reader must in all cases be made by the reader either individually or together with his/her investment professional. The views expressed in articles appearing on this site are solely those of Dave Budge and should not be attributed to any other person or entity except where expressly stated.
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OMG, adverse possession – just about the first thing you learn in Property Law. Leave it to lawyers to figure out how to use it to their own advantage.
Luckily, it’s not that easy to do in Montana. You actually have to pay the property taxes for the property that you are trying to take advantage of.
The allegation that he used city of Boulder connections is inferred, but not proven. This is a guy using the law to screw someone. Not land use regulation, common law. Stinks to high heaven, but he got away with it.
There are more surreptitious instances of protectionism practiced by elected and appointed officials (particularly planning board members) when it comes to land use regs. The protectionism I speak of is passing land use regulations that prevent landowners/developers from building subdivisions. A good example is Ravalli Counties 1 for 2 rule — one house per two acres. What the powers that be want to do is keep landowners/developers from building denser residential subdivisions so that their “quality of life” isn’t compromised. What’s interesting is that a lot of these elected/appointed officials are not native Montanans. They are people who came here, got theirs, and now want to protect it. The only way to do that is to use the power of gov’t to force other landowners not to utilize their land. It’s no wonder there is at least some support for a regulatory takings initiative. With that said, local communities can plan and zone to accommodate growth rationally with participation from all — elected/appointed officials, bureaucrats, developers, landowners, neighborhood groups. It’s a very messy process but necessary nonetheless.
The Samoan Lawyer is correct. In Montana, not only must you occupy the land for five years in an open and hostile manner to the rightful owner, and to the exclusion of all others, but you must also pay the property taxes on the land you seek to claim. Paying the taxes puts the rightful owner on notice that something’s going on with his land. And he had better start paying his own taxes.
You can thank the big railroad companies for the change in the law requiring the tax payments. Many years ago they were losing a lot of their land to adverse possessors (“squattersâ€) who simply fenced in a section owned by a railroad and started grazing their cattle on it. After five years, the land could be legally claimed by the adverse possessor.
As for government land, I believe it is impossible to claim any of it under adverse possession. But mining claims work just as well!