Friday, January 12, 2007

Unintended Consequences, Legal Malpractice, and Serendipity

I am always fascinated by examples of unintended consequences. Here is an instance of how the obvious solution may be the wrong one:

As a trial lawyer, I've probably had 50 adverse possession cases, on one side or the other. I also used to teach real estate finance and every few years one of my students would enhance their property holdings by adversely possessing someone else's property. The adverse possession rules are worth knowing for any serious real estate investor.

This is also a big area for legal malpractice since so many lawyers tend to do the absolute wrong thing when consulted by a client complaining of a neighbor encroaching on their property.

As the name implies, one of the things a trespasser has to show in order to acquire title by means of adverse possession is that his occupancy was adverse to that of the titled owner.

All too often, when a landowner complains to his lawyer that someone is trespassing on his property, the lawyer writes a letter telling the trespasser to get off the property or a suit will be filed. This is the wrong thing to do, as it merely helps the trespasser in establishing the required "adversity."

What the lawyer (or landowner) should do is send the trespasser a letter thanking him for taking care of the property and advising that the license to use the property is henceforth revoked (or demand payment of rent if the trespasser wishes to continue staying where he is). If done properly, such a letter is quite helpful in destroying that required element of "adversity," thereby saving the landowner's property. (UPDATE: Hat tip to Andrew Lavoott Bluestone's New York Attorney Malpractice Blog, to which I inadvertently forgot to link.)

Why serendipity? Because I subscribe to way too many blogs--I have over 400 feeds in my Google Reader subscriptions--but every time I decide I need to cut back, I stumble across something really interesting in a blog that I've only been scanning from time to time. My interests are too broad to use any of the RSS filtering tools. I prefer to use an RSS aggregator like Google Reader that lets me skim through scores of feeds very quickly to find the things that catch my eye.

2 comments:

andrew lavoott bluestone said...

Thanks - that was my blog you quoted. How about a link?

Jim Milles said...

Oops! Sorry, I thought I had. I've fixed it now.