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
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