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Righting a 50 Year Old Title Fraud

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM # LAW 676

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader has discovered that in 1940, a property was quitclaimed without the owner's knowledge. They are wondering if anything can be done now. Ilyce and Sam explain how adverse possession and a statute of limitations apply to this situation.

Q: Back in the late 1940's a land grant was quitclaimed by a person without the knowledge of the owner. Is this legal?
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What can be done to get the property back in the hands of the family of the original family’s owner?

A: You’re talking about something that happened more than 50 years ago. Most states have statues that would allow for the clearance of title issues long ago. If the transfer was a fraud in the late 1940’s and the family has long ago left that property and it has been occupied by others that claim to be the owners, you are probably out of luck.

One of the first issues that may apply to your case is a legal concept called “adverse possession.” In very general terms, adverse possession allows a person to effectively take someone’s property when the rightful owner allows the continued use of that property by the other party for many years.

The continued use must be without the rightful owner’s consent and the person that moves in must, in some cases, pay the real estate taxes. The possession of the land must be obvious to the world. The possession of the land must continue undisturbed for twenty-one years in many states (fewer in others). If the occupier of the land can prove all of the elements of adverse possession in the state in which the land is located, that person can sue to get title to the property.

Your case did not start with adverse possession but fraud. However, the fraud occurred years ago. Your state may have a statute of limitations that would prevent a person from prosecuting the fraud this long after it occurred.

The real issue is what has happened in the 50 years since the fraud occurred. If your family still occupies the land and has paid the property taxes, the person that committed the fraud might not be able to claim ownership of the land. His interests would conflict with your family’s.

On the other hand, if your family just recently discovered the fraud and the land has been occupied by others since the 1940’s, you’re probably out of luck.

To unravel this mystery, start by talking to a title company agent or officer near the property. Ask them what they believe the status of title is as of this date. The title company representative may tell you that their computer records show who the property owner is and that they have records that have insured the property as such for the last several decades. While the title company representative’s comments would not be the law in your case, it will give you a good indication as to the status of the title to the property.

If the status of title is somewhat murky and the title company doesn’t have a clear understanding about who owns title, your case may be stronger.

Once you have this information or if you need assistance in obtaining title company information, you should seek the assistance from an attorney with extensive knowledge of title issues and one that has litigated title issues previously.

Finally and unfortunately, if your family has had no contact with this land for so many years, your case may be a lost cause. Once of the basic principles in real estate law is to assist people in clarifying murky issues in property ownership rights, particularly when they have not been cleared up over a ten or twenty year period of time.

After the designated period of time, there has to be some certainty in land ownership and transfers and other claims are barred.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com