Tuesday, January 18, 2011

Two Types of Lawyers - Those Who Think, and Those Who Follow

I had the most interesting exchange yesterday with an attorney who works for the State of Washington. Our discussion was about the law of adverse possession and whether it need be changed. Without question, she was well-qualified to discuss the law. But, what surprised me was her inability to apply logic and reason to her argument (or even to counter mine). Sadly, all she could do was to regurgitate what she learned in Property (law school) rather than look at the issue at hand, which is should Washington change its adverse possession laws? So, I thought it would be a good idea to send her a note following up on our talk.

Just wanted to express my appreciation in talking with you yesterday about adverse possession. Clearly, we have differences of opinion about the law.

As you know, it was 1881 since the last time Washington's adverse possession law was changed. If you believe that we should keep laws stagnant and unchanged as to what they were in 1881, then I guess then that you subscribe to the view that women should not have the right to vote. For after all, in 1881 it was Constitutionally settled law that women did not have the right to vote.

In fact, it took 133 years for that change to occur. For 200+ years, people could legally justify owning slaves. I'm sure you do not believe that the Dred Scott decision was right. Legal, yes... but was it right? Other laws, that I'm sure you touched upon in law school, like dowry and curtsy no longer exist because society has moved beyond their need. Heck, can you imagine what our jails would be like if we still enforced "debtor's prison" today?

If there is anything that I can convince you of, it is this: the original need for adverse possession has faded. It is a law whose time has come and gone. As a country, we do not face starvation, and we no longer live in the wild west. Times have changed, needs have changed, society has changed. It is time for the law to change, too.

Because of this, both New York and Colorado have recently made substantive changes to their adverse possession laws. I suggest you read up on what they have changed and why. Obviously, this was not a trivial matter for these jurisdictions and their legislators. But, they did it because the people voiced their concern that current adverse possession statutes were outdated and in need of improvement. It is time for Washington to move beyond 1881 and catch up to today's standards.

If you have any other questions about adverse possession or why other people in Washington support House Bill 1026, please let me know.

Sincerely, Chris

What I've learned in talking with attorneys about the law (and yes... I've talked to A LOT of attorneys) is that there are basically two types of lawyers out there. Those who are great at knowing the law and reciting cases, and others who are great at thinking logically and are emotionally unbiased. I prefer the latter. We need logic and reason if society is to move forward. Appeals to history, appeals to authority, false dilemmas simply should not be used as legal justification. The law needs to be thought of as being alive. It changes and needs to change as society grows. I just wish there were more attorneys who applied logic and reason to their work, rather than who can just recite cases.

Wednesday, January 5, 2011

Washington State Bar - "A Good Faith Attack on Land Thieves"

Wow... this is a must read, straight from the Washington State Bar: "A Good Faith Attack on Land Thieves" (http://www.wsba.org/media/publications/barnews/jan11-landthieves.htm)

Here, Washington attorney, Robert W. Zierman makes an excellent argument in changing Washington's adverse possession law. In particular, Zierman argues in favor of bringing back a "good faith" requirement.
... the complete elimination of good faith may have also been a step too far.

This is critical, as having a "good faith" requirement would help deter greedy land grabbers, like Peter Dodsondance, from knowingly stealing others' property.

Kudos to attorny Robert W. Zierman in making a moral stand for what is right. It's not often that land attorneys support changing adverse possession laws, and it's great to see this appear in the Washington State Bar. Hopefully, more attorneys, legislators and people will see that adverse possession laws need to be changed!

Sunday, June 13, 2010

Latest Fraud in Housing Crisis

From the Florida Sun Sentinal... Here is the whole story (and you should read it to the end to see why politicians lack the spine to do the right thing and abolish legalized land theft).

How many more cases of legalized land theft need to happen before politicians do something about it? Adverse possession needs to end NOW!

South Florida Sun-Sentinel.com

Squatters take over S. Fla. homes in what police call latest fraud in housing crisis

By Sally Kestin, Sun Sentinel

June 13, 2010

Imagine going to a house or condo you own and finding a stranger living there who claims the property no longer belongs to you.

It's happening across Florida and other parts of the country through what authorities say is abuse of a centuries-old concept known as adverse possession.

Dating back to Renaissance England, adverse possession allowed people to take over abandoned cottages and farmland, provided they were willing to live there and pay the taxes. These days, officials say, the legal doctrine is being misused by squatters, trespassers and swindlers to claim ownership of vacant or foreclosed homes.

In Broward and Palm Beach counties alone, adverse possession claims have been filed on some 200 homes in recent months. Three of the four people behind the claims have been arrested, and police are investigating the fourth man, who along with his father, a convicted mobster, tried to take over properties in Hollywood.

"We look at this as another con job, another get-rich-quick scheme,'' said Don TenBrook, a Broward state prosecutor of economic crimes. "You're starting to see them pop up all over the place. It's been spawned by the real estate crisis.''

A bill in the Legislature this spring would have helped cut back on the abuses and better protect Florida property owners, but it failed to pass — the result of political retribution, state Rep. Ron Schultz, one of the sponsors, told the Sun Sentinel.

"We tried to nip this in the bud, but that didn't quite work,'' said the Republican from Homosassa. "This is becoming a fairly wide scam in Florida.''

Antonio Vurro owned an empty rental home in Sunrise that he was trying to sell when he discovered in February that someone had moved in, changed the locks and was trying to open a utility account.

"There were boxes all over the place and a mattress in each room,'' Vurro said in a recent interview. "This is not right. It's my house.''

The occupant, Fitzroy Ellis, told Vurro he was entitled to take over the home because it was abandoned. Police disagreed, and Ellis, 64, is now in the Broward County Jail charged with six counts of grand theft.

Ellis tried to claim a total of 48 properties in Broward, including a $1 million house in Coral Springs, through a company he formed called Helping Hands Properties Inc., county official records show. He told a Plantation police detective he planned to rent out the houses and condos and could offer tenants a good price "since he didn't have to pay anything for the homes,'' according to a police report.

Ellis, who is representing himself, wrote in court documents that the allegations against him are "false and an abuse of power.''

Another South Florida man, Mark Guerette of Wellington, filed notice in official county records that he was taking possession of 100 homes in Broward and three in the Palm Beach community of Lake Worth through Saving Florida Homes Inc. and two other companies. On one day last November, he filed takeover notices on 10 condos in the same North Lauderdale complex at 1200 SW 52nd Ave., records show.

Police say Guerette, 46, rented out six of the properties and collected more than $20,000 from tenants before he was arrested in April. He has pleaded not guilty to a charge of organized scheme to defraud.

His lawyer, Robert Shearin, said Guerette is nothing more than a good Samaritan, rescuing blighted homes.

"The banks are letting these properties go down the tubes,'' Shearin said. "Here's a guy trying to help out, and he ends up in jail.''

New twist, old law

The attempted takeovers are more fallout from Florida's declining housing market, said Dennis Koehler, a West Palm Beach lawyer.

"People who are upside down just choose to leave the property, let it sit," he said. "Some people have decided, 'Hey, this is an opportunity for me.' "

The opportunity involves a new twist on a very old law, dating to 16th-century England. Adverse possession allows non-owners of a property to eventually take ownership if they pay the taxes, occupy, maintain and improve the land for a period of years – seven in Florida. The purpose was to prevent abandoned properties from sitting idle with no one paying taxes on them.

It's been used mostly to take over abandoned farmland or settle boundary disputes, such as a fence or building encroaching on a neighbor's property.

In theory, vacant houses can also be taken through adverse possession, if the seven-year window passes and the property owner makes no attempt to pay the taxes or liens – an unlikely scenario, especially when a bank is laying claim through foreclosure, property experts say.

And claimants risk breaking other laws if they trespass, break into a home or try to collect rent without being the actual property owner.

Even if someone claiming adverse possession manages to legally occupy a home and pay taxes on it, "an owner could come in the sixth or seventh year and say, 'I want my property back,' " Koehler said.

Koehler said he was hired by a West Palm Beach man, Carl Heflin, to provide legal advice on taking over homes through adverse possession. Koehler told the Sun Sentinel that he outlined a series of steps Heflin would need to take and stressed that he "couldn't just move in and squat.''

But that's exactly what Heflin did, according to the Palm Beach County Sheriff's Office.

Beginning in December 2008, Heflin filed adverse possession notices on properties in West Palm Beach and even submitted deeds declaring ownership of 27 of them, police and court records show. He also moved his computer into a law office of a now disbarred attorney and changed the locks, the records say.

"When he told me about that,'' Koehler said, "I dropped him as a client like a hot potato.''

Danielle Rubio said Heflin duped her into believing he was a legitimate landlord and in April 2009, she rented a three-bedroom home from him. The home was in disrepair, Rubio said, and Heflin's ex-wife Cheryl collected a deposit with the promise to fix it up.

Rubio and her family spent just a few hours in the house when her 2-year-old son got sick from mold and was hospitalized, she said. Seeing little progress on the home in the following days, Rubio said she started checking Heflin out and tracked down the owner of record, who told her the house was in foreclosure and he had no tenants.

Rubio said Heflin refused to return her money, about $1,200, and she moved her family in with a relative.

"We were with my aunt two months before we could save enough to get a place,'' she said. "We gave all the money to [the Heflins].''

Heflin, 52, was arrested last summer and is scheduled for trial June 21 on multiple counts, including organized scheme to defraud. Two associates, George Chambers and Sue Ann Smith, pleaded guilty in March to petty theft and as a condition of their probation must testify against Heflin.

Heflin and his attorney could not be reached for comment. Heflin's ex-wife has not been charged and declined to comment. "I don't care to speak to you about any of this,'' she said.

"It's scary that people can just take your money without even thinking about it,'' Rubio said. "We never thought we would ever be in something like that. The paperwork looked legitimate.''

Ex-cons involved

Similar problems have occurred in Florida's St. Lucie and Pasco counties, in Las Vegas, Nev., and southern California. (they should add Washington, too)

A squatter citing adverse possession took up residence last month in the former home of the mayor of Deltona in Volusia County. The house had been foreclosed on and sold when a woman moved in, hooked up cable television and refused to leave until sheriff's deputies forced her out and gave her a trespass warning.

In South Florida, those trying to take properties have included people with criminal records, experience in real estate, or both.

Heflin told a sheriff's detective he had "always been interested in real estate'' and worked in 2007 for a company that secured foreclosed properties for banks.

Guerette had been an officer in property management, mortgage funding and real estate companies, corporation records show. He was convicted of misdemeanor and felony theft charges in 1994.

Adverse possession even lured a Hollywood man with ties to the mob.

Joseph Spitaleri was a member of the Trafficante organized crime family when he was convicted of racketeering in 2001, sentenced to nearly five years in federal prison and ordered to repay $1.7 million. He was one of 19 people named in a wide-ranging indictment that included charges of laundering money through mob-controlled check-cashing stores in Broward County.

In February, Spitaleri filed adverse possession notices on 14 Hollywood homes and one in Fort Lauderdale through Saving Florida Neighborhoods Inc. His son, Michael, claimed 13 other properties through his company, MAS & Son Inc., records show.

Joseph Spitaleri withdrew his claims in March, and his son gave up all but four of his last month.

One of the homes Joseph Spitaleri claimed ownership of is on Hollywood's South Lake and is currently under contract to be sold for $1.2 million, said real estate agent Mike Harris. He said he learned of the adverse claim through another Realtor, and the owner's attorney "contacted the outfit that was trying to steal this property'' and cleared the title.

Joseph Spitaleri could not be reached, but was "not really involved'' in the adverse possession claims, his son said.

"I canceled everything [for him] and had it all in my name,'' Michael Spitaleri said. He declined to answer further questions.

Hollywood police are investigating Michael Spitaleri's property claims, said spokesman Lt. Manny Marino.

Politics killed solution

For property owners, consequences of adverse possession can be costly. A claim can cloud the title and affect future sales, forcing the owner to hire an attorney and in some cases go to court.

One Polk County nursery owner has spent more money fighting an adverse possession claim than his property is worth, said county Property Appraiser Marsha Faux. Polk holds the state record for the most adverse possession claims – 613 -- many in unplatted subdivisions that are delinquent in their property taxes.

"Most are foreign owners, and they thought one day it might be developed and it would be close to [ Walt Disney World] and they'd make a fortune,'' Faux said. Others are properties in use by the actual owners but someone beat them to paying the property tax bill, she said.

The judiciary committee of the Florida Senate warned of the potential abuses of adverse possession last fall. Rep. Schultz, a former property appraiser, introduced legislation to stop them, including requiring all property owners to be notified when a claim is made and preventing non-owners from paying a tax bill until it becomes delinquent.

The bill, co-sponsored by Sen. Paula Dockery, cleared the Senate unanimously but died in the House the last day of the legislative session, April 30.

Schultz said a House leader told him the sponsors were the problem. Dockery, a Republican from Lakeland, was running for governor, but the preferred candidate of the House leadership was Attorney General Bill McCollum, Schultz said.

And Schultz said he angered leaders by voting against their priorities, including bills tying teacher pay to student test scores and requiring pregnant women to get an ultrasound before an abortion.

"When you are the lone 'no' vote among Republicans, you can expect to be noticed, and your bills have a certain aroma,'' Schultz said. "I was quite disappointed. It was a general purpose, anti-fraud bill and it didn't get a hearing.''

Palm Beach County Property Appraiser Gary Nikolits said the "political payback'' has hurt all Floridians.

The proposed law "had statewide consequences and had benefit for all taxpayers,'' he said, "so shame on the leadership.''

Database specialist Dana Williams contributed to this report.

Sally Kestin can be reached at skestin@SunSentinel.com or 954-356-4510.

Using Adverse Possession to Steal

Finally - the media is starting to report on how people are perverting the law of adverse possession to steal land! We need more data to show how widespread the corruption is behind legalized land theft.

Direct from the Florida Sun Sentinel:

Four groups operating in Broward and Palm Beach counties filed at least 198 adverse possession claims in an attempt to take over $28 million in real estate from January 2009 through March 2010. The properties ranged from a North Lauderdale condo valued at $15,260 to a Hollywood home assessed at $1.3 million.
The question I have is who are these people? Who is Fitzroy Ellis? Who is Mark Guerette? Who are Carl and Cheryl Heflin? Who is Cleve Nembhard? Who is Dolores and Daniel Romero? Who is Joseph Spitaleri? Who is Julia Elva? Who is Misty Hall, Sarah Leon, Theresa Darius, and Vivian Muniz? According to the 198 adverse possession claims filed - these are people who are taking land without paying a dime for it. They are perverting the law to steal.

Stop the corruption, thievery and greed; help end adverse possession now!

Wednesday, March 31, 2010

Florida Responds Fecklessly to Adverse Possession

In the wake of the highly publicized story of a former Real Estate agent taking homes under the guise of adverse possession, and then renting these homes to unwary suspects, new legislation has been drafted in Florida to help prevent such dastardly deeds. Unfortunately, this new legislation is far too little to be of any substantive change in ending legalized land theft in Florida.

These new bills, HB 887 and SB 292 only add the following
Adverse Possession
Requires person seeking property by adverse possession to send to property owner of record copy of return filed with property appraiser; requires property appraiser to cancel return if person does not submit proof of mailing; provides exception.

This is a start, but clearly does not go far enough in abolishing legalized land theft.

Today, this story appeared in The Ledger, "Some Say Florida Land Tax Law is Unfair to Owners"

The best quote in it, is the very first line:
"A 19th century law that worked well on the open range is causing some problems in the 21st century." -- So True!

This is a great article to read, as it illustrates the problem Florida has with people literally stealing property from unsuspecting owners. I've talked to a few people in the Sunshine state. It sounds more like the Wild West -- pure lawlessness -- all for greed and stealing land.

What really should be the wake up call is all of the out-of-state homeowners or soon-to-be retirees. Think about it. You bought your dream lot (say $99 down and $99 a month), and now you're going to retire and build your home on land that may already belong to someone else.

Wake up Florida -- when droves of retirees find out their "dream" retirement spot has been stolen, you can count on stronger legislation than HB 887!

Tuesday, March 30, 2010

Clouded Title with a Chance of Encumbrances

Life is so ironic.

This is my personal post about our neighbor, Angie Lynn who at 11951 Miller Rd NE, Bainbridge Island, WA sued us for adverse possession. In fact, her lawsuit sparked the whole reason to create "End Adverse Possession Now."

Because of our neighbor-to-neighbor lawsuit of legalized land theft (aka adverse possession), my wife and I went through the same hell that thousands of people go through every year. It is for this reason, we know adverse possession so intimately and personally. No politician can appreciate having their land stolen until they experience a neighbor, like Angie, using such an arcane law to steal something that was never paid for.

But, I digress... the irony here is that we settled with Angie. Our lawsuit is over and done. Despite her claims of being a "good Christian woman" she was more interested in stealing our property than being a good neighbor. However, in the whole legal process of signing quit claims and boundary line adjustments, it appears that our mortgage now encumbrances HER title.

What's funny is that the land she fought to steal from us is now encumbered by our mortgage, which puts a cloud on her title. Normally, that might not be a big thing, but recently, she decided to put up for sale her house (and the land that she fought so hard to take from us).

But, as you and I know, most people won't buy a house with a cloudy title. It's a recipe for disaster.

Which brings me to the irony of it all. If Angie decided not to sue us for adverse possession, this whole thing would have never been a problem. But, because she thought the law gave her a right to take something that she didn't pay for, and now she's stuck with a property with a clouded title.

Good luck in selling that house. Maybe the lesson learned from all this is that greed and adverse possession is a sure fire recipe for problems to come. Another reason why adverse possession needs to end now.

Thursday, February 18, 2010

Why Adverse Possession Needs to End Now

People sometimes ask, "why does adverse possession need to end now?" Among the many responses, one that stands out is the fact that adverse possession gives people a belief that they can lawfully take other's property. And, this is true. Because of the existence of adverse possession, some people feel entitled to twist the law so that they can take what they have not paid for.

Just a few months ago (November, 2009), there was a story in Las Vegas about a former real estate agent, Eric Alpert, who tried to justify his theft of homes under "adverse possession." Here's a link to our original post on that: http://endadversepossession.blogspot.com/2009/11/adverse-possession-and-greed.html

In that, you'll see the link to the Las Vegas Review Journal, which explains his story in-depth.

Today, the same story repeats in Tampa Bay (Pasco County), Florida: "Man Accused of Turning Foreclosed Homes Claims 'Adverse Possession' into Pasco Rentals"

The legal premise [Stephen] Bybel used to claim these homes is called "adverse possession" — Chapter 95 of Florida Statutes, which spells out how someone can take possession of a property through squatter's rights.

The law requires that a person occupy the property for at least seven years and fulfill other legal requirements...

What Bybel did, "was never the intention of the statute," White said.

"This is closer to burglary and grand theft than it is to adverse possession," the sheriff said.

Unfortunately, the sheriff got it wrong. Adverse possession IS theft; the only difference is one is illegal and the other is not.

As well, it's worth noting the sheriff's statement of the "intention of the statute" -- The original intent of adverse possession was to make sure land was being used to grow crops. Today, our nation does not face starvation. The "intent" of adverse possession is long lost in history, which is another reason all to itself of why it needs to be abolished.

That being said, this points to an alarming reason to end adverse possession now. People like Stephen Bybel are perverting the law in order to steal and scam people out of their money. And, he's not alone. There are MANY Stephen Bybels and Eric Alperts out there - all looking to get something for nothing. This is the absurdity of adverse possession; this is why it needs to end now.