Involuntary Alienation

The involuntary transfer of title is usually accomplished through one of six methods:

  • Eminent domain. The government's four basic powers are taxation, police powers, escheat and eminent domain. The power of eminent domain refers to the government's ability to take property from private ownership, normally through the process of condemnation. For more information, see the "Eminent Domain" article.
  • Escheat. The government's power of escheat refers to its prerogative of receiving the property of any person who dies intestate (without a will) and without any heirs. Depending on the location, the property will revert either to the state or the local county.
  • Descent. The laws of descent—also called intestacy laws—are used to govern the disposition of real property of a person who has died intestate (without a will), but with heirs. The court appoints an administrator who will settle the debts of deceased person and dispose of any remaining assets. The deceased's remaining property are normally distributed to heirs according to that state's laws of descent.
  • Lien enforcement. Property may be taken from its current owners by one of the lien holders with claims against the property's title. Such foreclosures are normally initiated and conducted for delinquent real estate tax liens or defaulted mortgage liens. Most mechanics' liens and judgment liens normally are not allowed to initiate foreclosure proceedings.
  • Accretion. The gradual removal of land through either natural or human causes is called accretion. Loss of land through natural causes is typically labeled erosion.
  • Adverse possession. Also called title by prescription or loosely referred to as squatter's rights, this is the process by which a person can take property from its owner, without that owner's consent.

States have varying statutes that the taker must meet to adversely possess another person's property, but the four basic requirements are as follows:

  1. Continuous use. The person who wishes to take the land must have occupied and/or used the property continuously for a minimum time period, specific to each state. [Note that usage without occupancy may give that person an easement by adverse prescription, rather than full ownership of the property.]
  2. Adverse. The person's use must be done without the owner's consent and/or against the owner's complaint. If the owner decides to give the person limited permission, then the right to adverse possession may be terminated.
  3. Open and notorious. The person's continuous use must be in the open, without attempt to hide or camouflage. It must be visible to all who care to look.
  4. Exclusive. The person, family or group adversely using the property must possess it exclusively, without sharing it with either the owner or other parties.

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