“It’s as good as picking up a wallet full of money with no identification inside. How can I lose?”
Silas seldom got excited but he was plenty excited now. He sat across my desk from me, pictures and schematics scattered all over the desk. He was a middle aged, very sensible general contractor, had pretty much seen it all, did not expect to find gold in any pot at the end of any rainbow, but was as flushed with excitement as a kid. His gamble, his expensive gamble, which he had kept hidden from even his wife, had possibly paid off. He was only seeing me to wrap it up.
Adverse possession was an invention of kings in the early Middle Ages and was a brazen attempt to give the Barons and other nobles a very hard time. Kings were paid taxes based on the produce of land…and idle land made no money for them. Barons wanted as much land as they could get, trying to build up their own power and…who knows…just maybe make a try for the Crown. So now Silas was sitting there hoping to cash in on disputes as to tax payments from the Middle Ages. If you don’t own the land by working it, you lose it to someone who does, ruled the King’s courts.
And, as the centuries passed, the ploy became common law, then statutory law in the United States. And in places like California, one could claim adverse possession in only five years….if the use was open, notorious and uncontested…and you paid the taxes. Taxes again…the State still trying to get them.
I looked at the tax bills he had put on my desk. All marked paid. By Silas. “It’s not like finding a wallet, Silas. It costs you, does it not?”
He leaned forward, elbows on my desk. “Sure it did. Some thousand each year. But that land is worth hundreds of thousands. We’re talking fifteen acres. Prime land.”
I picked up the pictures. An abandoned dilapidated shack on wooded sloping land. Pretty. No fences. No signs. “You do anything to show you were making a claim?”
“Up there at least once a month. Cleaning it up. Camping out, sometimes. Left some equipment on the lots.” He picked up another picture and showed it to me. “See. Picture of my backhoe. With a newspaper on the seat. See the date? And I dug a trench.”
I grinned. He had it all thought out. The date on the newspaper was over five years ago. “Not bad. And no one came around to kick you off?”
“Nope. And when I went in to pay the taxes, the County Clerk said no one had paid them since 1976. Had all sorts of tax liens on it. But, you know, these rural areas…no tax sale was ever going to happen. Just lien it to death. But I paid them off. Paid all taxes. Cleared the land enough to comply with the fire laws. Five years of this…six, really.”
He was excited, yes….but I could sense he was also a little guilty. “You not telling me anything?”
He straightened in his chair, looking defensive. “I did the work.”
“Yeah, I know that. But what are you holding back? I know you, Silas…come on, come clean. You know about the attorney client privilege. I don’t want any surprises coming up.”
His fingers tapped the arms of the chair for a moment. Then he shrugged slightly. “Well, I looked up the record holder. I know where he lives. And…”
“Yeah?”
“Well, I didn’t tell him what I was doing. I mean, I didn’t even contact him.”
My turn to lean back in my chair. “You are not legally required to do so, Silas. He has the affirmative duty to check his own land and to pay his taxes. You don’t even have to try to locate him.”
“Yeah, but…it makes me feel a little…a little sneaky, I guess.”
“And you didn’t tell Ethel what you were doing, either?”
He chuckled at that. “She has no idea. Used the reserve from the company. My rainy day money. Didn’t need it, thank God…”
“You were taking quite a chance…”
“Life is risk. But she is going to be really surprised. We will have fifteen acres for less than the cost of three vacations.”
I knew Ethel, a woman as practical as Silas normally was. She was going to be surprised. She was also going to be mad as hell. She didn’t like Silas using their money without her involvement and even if this came off, I could expect some real tension in the home to arise. Silas didn’t seem to anticipate this. He was fixated on that land. And he knew Ethel would not have approved of paying the taxes on a gamble.
“You find out the answer to the key question, Silas?”
Eyebrows shot up, concerned. “I missed something? What? I studied the law…”
“Yeah, but you should have talked to me first anyway, you know.” He flushed a little. “But that’s not what I’m talking to you about. I mean use some sense, here, Silas. You say it’s worth a lot, right?”
“Yeah…”
“So, why did the guy let it go for taxes?”
Silas leaned back. “Because he’s an idiot, that’s why.” He saw my expression and went on. “I mean, if he’s a fool and busy with other things in his life…” He saw me rolling my eyes and his voice hurried on. “You say it’s not my legal duty to inquire..”
“We are not talking legalities. We are talking practicalities. We are talking about thinking it out.
Why did he let it go?”
Silas was getting angry. “Look, I just want you to handle the paperwork.”
“And if I was a typical lawyer, maybe I would. But I like to think I’m your friend as well, you ornery old goat.” That had him grinning again. “Silas, you and I have been through two dozen very tough cases...lien cases, contract cases. You weren’t born yesterday…”
“Lord knows…”
“So, you know how the game works. We have to figure out what’s really going on, what people are not telling us, why they are acting as they do…why it seems to be too good to be true. ”
Silas was a smart guy, just over excited. I could see his mind beginning to work again. “It’s pretty remote. He lives two hundred miles away.”
“So, why didn’t he try to sell it? Or at least give it to a relative who could use it? What’s really happening? Doesn’t this make you suspicious? You say it’s valuable land, right?”
“If I contact him, he will contest this, won’t he?”
“Quite possible. He has a right to contest anyway, once we file papers to vest title in ourselves.”
“It’s one thing to get some papers in the mail. Another thing if I show up and discuss it with him. He might ignore the former. Not the latter. This trial. How much would it cost?”
“A contested trial on adverse possession can cost tens of thousands…more. You should win, but not necessarily without a fight. If he doesn’t show up to contest…a few thousand.”
“But if has done nothing for years…If he just gets some more documents in the mail, he will probably just throw them away…”
“Probably.”
“But if I contact him and start discussing it…well, that increases the chances for a fight, doesn’t it?”
“Maybe. Or maybe he will shrug and say take it. Or maybe you can buy it cheap from him. But
you also might find out what is really happening…”
He thought for a moment, then shook his head. “Life is risk. I don’t want to muddy the waters and encourage the guy to come at me. Let’s just go for it.”
“It might be a real hornet’s nest, not a muddy pond.”
“Hell, nothing he can do to me is as bad as what Ethel will do to me if this thing costs too much…Let’s go for it.”
Which we did. No contest. Over in six months. Title in his and Ethel’s name. At a birthday party for Ethel he revealed all, including plans for a summer cabin he had already prepared and promised to build for their retirement. All laid out in a power point presentation during her party, including the title documents framed in a birthday package. Ethel had a hard time understanding what it was all about so he brought her to my table in the restaurant banquet room. They were both a little drunk from the party drinks but I could sense he was a little nervous about her reaction.
“I don’t understand it,” she said. “We just get it for free? Why?
I had drunk a bit of wine myself so took my time to answer. “Something called adverse possession. If you openly use property and the owner does not object for five years and you pay taxes, you get it. In some states they require a much longer period…like ten or twenty years. But here, in California, it’s only five years but you have to pay the property taxes during that time.”
Silas glowed. “That’s what I did…as a surprise for you, baby…”
But she was still looking at me. “That’s all? We just keep using it for five years and pay taxes and it’s ours?”
“Well, you have to get title into your name…file papers with the Court…but, yes, and here the owner…the prior owner…didn’t even appear to contest.”
She was not smiling despite Silas squeezing her arm in his happiness. She thought for a moment. “We get it…do we get any warranties with it?”
Silas was annoyed. “Come, on, baby. This land is worth lots…”
She cut him off. “Let him answer. What warranties do we get? I know when you buy land you get lots of warranties.”
“Well, title is yours. You have that. And that’s it. You get the property as is where is. Period.”
She turned to Silas. “Did you check it out? See if there are any problems with it?”
“Problems? What do you mean problems? We’re the problems. For the old owner. C’mon baby, relax…for some taxes and some legal fees, we now own acreage that is going to be where we go for peace and quiet. I thought you’d love it…”
She softened and hugged him. “I do, love. I do. You know me, I just don’t think one can get something for nothing…”
“It wasn’t for nothing. We paid the taxes…”
She stopped him by kissing him and held him tight. Their friends came over to talk then and the subject was dropped.
Until I happened to be backpacking with a friend who was a police office perhaps six months later. As one is wont to do, we were having desultory conversations as we puffed up a hill, recounting our war stories, and he was talking about the drug labs that had been built in rural counties that had been primarily used for making methamphetamines and the crime wave that had erupted in those locations without much in police resources to fight it.
“You wouldn’t believe it, “ he panted, “They’d buy a trailer or three, set up production, and if things got a little hot, would move the trailers and keep going. Their real problem was rival gangs. Were some pretty tense times out there.”
We stopped and breathed heavily. We still had another four miles to go. I tried to stretch my back despite the heavy pack. “How’d they’d get the trailers in?”
“Fire roads. Then they got wise not to use federal land. FBI problems with that. So, they switched to State land or private land. Sometimes they’d build on land they already owned. Once they started making money, they switched from renting land to buying it. They’d only need to own it and operate it for a year or two to make good money. We ended up with dozens of used trailers…thought we could use them for police work but the contamination…” He stopped to take off his hat and mop his brow. It was pretty hot.
“Contamination?”
“Yeah. A lot of their chemicals are toxic waste, you know. Really bad stuff. Costs a billion to clean it up. More than the trailers are worth…and then we were stuck with contaminated trailers. Pain…”
The coin didn’t drop in my mind until a week later but by then I was on the phone with that police officer asking him to check locations of drug labs known to him, giving him the legal description of the land Silas and Ethel now owned and, as a favor, he went back on the records and reported back to me about a month later.
“No arrests there. Indeed, never saw anyone there. But you’ve still got a problem.”
“Why?”
“Fire, my boy, fire. Fire department was called in due to a fire in a trailer twelve years ago that was on the place. Burned to the ground…well, as much as a trailer can burn to the ground. Just twisted metal, junk, and wire when the cops got there.”
“What caused the fire?”
“Hard to know. But we do know that it was a lab.”
“How?”
“It’s pretty obvious when you’ve seen one. Type of things inside, the bags of chemicals and the like.”
I sighed. “You arrest the owner?”
I heard him leafing through the file. “Nah.. He said he didn’t know they were there. His house was hundreds of miles away. Report says they couldn’t get anything on him. But he should have had bigger problems than us.”
“You mean the other gangs?”
“No, I mean the worst gang of all. The Feds. Once these places burn, they are hazardous waste dumps, you know. If the right chemicals melt down into the soil. We reported it to the Feds, I see. Don’t know what happened then.”
I thought for a minute. It was well established, if controversial, law that the owner of land was responsible for all contamination on it, even if done long before the owner bought the land. The owner might be able to sue the prior owner for lack of disclosure or breach of warranty…indeed, going back dozens of owners…but here, with adverse possession….there were no warranties. I thought of Ethel and my voice was tight. “You don’t know if a clean up occurred?”
“Should have. I know some were ordered during that time on other land. But there were a lot of labs, many on federal land…they didn’t always get around to forcing it. Costs hundreds of thousands to clean up a lot of them…have to go down ten feet into the soil and the like. If you are asking me, they probably let it go. The Feds won’t come now unless something wakes them up…”
“But that land could be dangerous. And is not sellable.”
“Maybe. Maybe not. Depends on the chemicals, depends on how much. You can get experts to check it out.”
“And those experts are required to report the results much of the time. And word will get out…unless it is clean.”
“Maybe it is. You never know. These owners your friends?”
“Yeah. Friends and clients.”
“Then I never heard from you,” he said, and hung up.
And now I was the one with the problem. I could certainly let Silas and Ethel know what I knew and due to the attorney client privilege, it would stay confidential. But if they tried to sell it, they’d have to make full disclosure. And, for all we knew, the land was on a list for clean up or investigation in some Federal office and slowly working its way to the top of the list. The Federal Agencies, long under funded, often took a decade or more to even begin investigation. If Silas built that cabin and then found out there was contamination, his situation would be even worse.
But the deciding factor was more basic. If Silas and Ethel were going to be using that land, with their kids and grand kids, they had to know that there might be danger there. And that they, as title holders, now faced the cost of clean up. And the cost of clean up could be in the hundreds of thousands.
Ethel said nothing as I explained the situation. Her face became hard, but she said nothing. We were in the office after five since that was the only time they could both make it. Our office was empty except for an attorney preparing for trial down the hall and we could dimly hear him talking excitedly to his clerk on the phone as the silence lengthened. Silas was the first to speak.
“Hell, let’s abandon the land. Give up title.”
“Can’t do it, Silas. You are on title. Even if you give it away, you remain liable…along with whoever is next in line and past in line.”
He flushed. “Then we get that drug dealer to pay for it. I visit him and let him know he’s going to pay for the clean up…”
“He will deny he knew anything about it. After all this time, we’d have a hard time proving anything. If the cops can’t, we probably can’t. And who knows if he even has the money..?”
“The Feds may not show up at all….”
“Likely they won’t after all this time…”
“And if we don’t sell it, we don’t have to disclose what we know. We can just keep it…”
At this Ethel exploded. “We are not going to have our grandchildren on that land.” Then she visibly controlled herself and said in a more even voice. “What do these cost to clean up?”
I had been in a few cases like this. “Anywhere from five to ten to check and see what the contamination is to hundreds of thousands for major clean up when you have to go down several meters and dispose of the contaminated soil. No way to know until it’s tested. And the local agencies have to sign off…”
“That is what we will do, then…”
Silas was staring at her. “Are you crazy? You’re talking about hundreds of thousands for all you know…”
She glared at him. “You bought it. You own it. You clean it. I am not going to hide what could be a dangerous place. Where other children could wander…”
“It’s in the middle of nowhere…”
Her voice became firm. “You and I are going to clean it up, Silas. Period.” And, without another word, she stood up and left the office. With his car, I might add.
Silas was now glaring at me. “You had to tell her? You couldn’t have just told me?”
“You are both my clients, Silas. Both. Of course I had to tell her. And would you have let your grandkids play there?”
“I would have just let the place lie. Not done anything with it.”
“Right. And told Ethel you changed your mind….?”
“Maybe…maybe.” Then he collapsed back in the seat. “I don’t know. Damn. Damn. I blew it big, didn’t I?”
“Maybe and maybe not. Even if you find something and it costs a hundred thousand to clean up…well, what’s the value of the land?”
He brightened for a moment, then sobered. “She’ll never forgive me.”
“I don’t think she was that angry…until you tried to get out of cleaning it up, Silas.”
He stared at my desk for a few moments, then grinned. “Love that woman. You are right. That’s why I love her. Good ethics. Good Christian woman.” He sighed. “Now, I have to go home to her. Wish me luck…”
I was wrong and right. It actually cost about twenty thousand to do the soils check. They had to re-clear an old road to even get to the site. But the only contaminate was plastic from the trailer. Somehow, no chemicals had entered the soil and for another twenty thousand they had the very top soil removed anyway…and, since that land was level and clear, utilized that a few years later as their building pad. Silas called the cabin, “Idiot’s Paradise” and put the name on a small wood sign he made himself over the door while Ethel looked on smiling.
And whenever I would see Silas after that to discuss his many business deals, he would always begin each conference with the words, “Nothing is free. That’s my motto….”