Time Doesn’t Always Fly
When an adverse possessor is waiting for the statutory clock to run, it can seem like forever. Two recent, unrelated cases illustrate how outside forces can prolong that wait.
The first case is Schoorl v. Lankford, Idaho Sup. Ct., 2017 Opinion No. 9. When the Schoorls began their adverse possession, the required time for occupying adversely possessed property was only five years. During their possession, the Idaho legislature increased the statutory time period to twenty years. At the time the amendment became effective, the Schoorls had possessed the land in dispute for four years and eight months. Approximately 14 years after entering into possession, the Schoorls commenced an action seeking to quiet title based on adverse possession in excess of five years.
They contended that “[a]dverse possession statutes create vested property rights at the time possession begins.” The new statute was not expressly declared retroactive, and the Schoorls contended it could not deprive them of their “vested right” to rely on the shorter statute. The Idaho Supreme Court disagreed. Pointing out that an adverse possessor does not acquire any interest in the property until the statutory requirements have been established, the Court held the Schoorls had no vested right of action when the time was extended.
While not presented in this case, this analysis seems to imply Schoorl would have been able to take advantage of the shorter statute had the five year requirement been met prior to the statutory amendment, even if the action were commenced after the amendment.
The second case, Weible v. Wells, 2017 PA Super 49, presents an unusual set of facts. Wells had entered into possession of the disputed area in 1979 and remained so continuously through 2009, when Weible brought an action in ejectment. The Pennsylvania statute requires 21 years. So, what’s the problem?
It turns out that from 1995 until 1998, two Pennsylvania counties jointly owned and operated a mental health services facility on a parcel that included the disputed area before selling the property to Weible. Invoking the doctrine of nullum tempus occurrit regi, the trial court held the counties’ “public use” of the property interrupted Wells possession and mandated the clock start running anew once Weible came into title. Thus, Wells was unable to show 21 years of possession either before or after the counties’ ownership.
The Superior Court reversed. Accepting the trial court’s finding that the counties’ “public use” was adequate to shield the land from adverse possession, the Superior Court determined that nullum tempus merely “tolled” the running of the statutory period for three years, rather than reset it. Although Wells could not assert title against the counties, Wells “concurrently use[d] the land in a way consistent with adverse possession.” Thus, they were able to tack their 16 years of pre-County possession onto their 20-plus years of post-County possession to establish their claim.
Pennsylvania case law on the governmental/proprietary distinction is particularly difficult to decipher. In Weible, the Court focused on a small group of cases that seem to equate “public use” with “governmental capacity,” invoking the nullum tempus rule on that basis. We may not have heard the last of this case, however. A Petition for Allowance of Appeal is currently pending in the Pennsylvania Supreme Court