Many people have heard of “adverse possession.” This is a common legal rule where, if you use your neighbor’s land for five years or more, you can go to court and get a deed to the portion of your neighbor’s land that you have been using. What most people are surprised to learn is that, as a practical matter, there is no adverse possession in Montana – even though an adverse possession statute is on the books.
Adverse possession has existed for 150 years or so in western states because the law wants to reward people who are actually using land as opposed to those who, while they technically have a deed to it, are not using it. The most common scenario is a fence mistakenly placed over a boundary line so it is a few feet on a neighbor’s land. Adverse possession is based on fairness: if a person puts up a fence and relies on its location for five or more years, it would be unfair to force them to tear it down. The Montana Legislature apparently disagrees.
The Legislature passed a statute, MCA 70-19-401, saying you can get title to another person’s land by using it for five or more years. So you can, right?
Another statute, MCA 70-19-411, says you must pay taxes on the other person’s land. No problem, you say, because your property tax assessment would include the land you’re actually using such as the land you’ve fenced in. Not so.
Montana property tax assessors use the legal description to determine the size of the parcel and hence the property taxes. So you pay property taxes on the land in your legal description, not on the land you’re actually using. But in an adverse possession situation, you are using land that is not in the legal description to your property – so you never pay the property taxes for the strip of land you fenced in. A 1979 case, Nott v. Booke, says that legal descriptions – not the actual usage on the ground such as a fence – determine what taxes you pay. So you can never pay taxes on the disputed territory.
The only way, as a practical matter, to adversely possess property is for a person to somehow pay the property taxes for someone else’s property. But it’s not as if you can stroll into the tax assessor’s office and volunteer to pay taxes for someone else. Even if you could, you would need to do so for five consecutive years. That almost never happens.
If I were ever in the Legislature, I would try to repeal the statute about having to pay property taxes on the property being adversely possessed … that the tax assessor will never assess against you, so you can never adversely possess.
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