June 22, 2007

Obscure law that benefits squatters criticized

Land Disputes: The Riverside County tax collector targets the state’s adverse possession process.

The Press-Enterprise [Riverside, CA]
San Bernardino and Pass Edition

Escalating tensions in a Wildomar property dispute have spurred a Riverside County official to seek changes to an obscure state law that allows squatters to take land from unsuspecting owners.

"If someone is squatting on a piece of your land or someone is in your house, you usually can call the sheriff and the government comes to help you out," Treasurer-Tax Collector Paul McDonnell said.

That's not always the case with adverse possession, a law rooted in Anglo-Saxon history that McDonnell said has created "a cottage industry of people who are attempting to capitalize on the weakness of others."

Almost every state allows adverse possession in some form. California law allows an individual to acquire title to a property if they've fenced it, openly occupied it without permission and paid property taxes continuously for five years.

McDonnell, president of the California Association of County Treasurer-Tax Collectors, said he is asking his organization to support legislation that would allow tax collectors to return payments to those who are using adverse possession to "squat on the county property-tax system."

"We need to be given clear authority to intervene on behalf of the legitimate taxpayer," McDonnell said.

Right now, McDonnell said, the county must send a letter to the title owner and the non-owner asking the individuals if they want a refund.

McDonnell said a change in the tax code would allow the county to immediately peel off the payment from the adverse possessor and return it with no questions asked.

McDonnell said he was surprised to discover there are 20 cases in Riverside County where adverse possession is being used in an attempt to take title to properties.

San Bernardino County Assistant Treasurer-Tax Collector Annette Kerber said adverse possession has been an issue in her county as well.

"Sometimes people will come right out and say they are trying to pay taxes to acquire property through adverse possession," Kerber said.

Even though the title holder has already paid their taxes, there are times the non-owner will insist his payment be applied. The money will be refunded, but Kerber said the non-owner has a receipt of property-tax payment.

Attorney Spencer Weisbroth, whose San Francisco firm's Web site details how adverse possession works, said the process is getting tougher to execute.

Most people who are attempting adverse possession fail because they fall short on one or more of the requirements -- usually the payment of taxes, Weisbroth said.

Neighbors' Property

Earlier this year, a half-dozen Wildomar landowners complained to county supervisors that Jeff Downtain, 47, had erected a large fence and installed guards to bar them from their rural property. Some said they had been threatened. "No trespassing" signs have been posted outside the large compound where the Downtains live with their six children.

Downtain said he ran a free food program for the needy until October when code enforcement and sheriff's deputies raided the property. He also said he runs the Jesus People ministry from his home.

Last month, county supervisors gave the Downtains and the six owners of land within the fenced area 90 days to clean up their properties. But the six owners are unable to gain access.

Senior Code Enforcement Officer James Monroe said if the Downtains don't clean up the lots, the county will get a court order and do it for them. That would include razing the unpermitted house where the Downtains live, Monroe said.

Monroe estimated the cost of cleanup to be between $35,000 and $50,000.

District Attorney Rod Pacheco's office is conducting a criminal real-estate fraud investigation into the Downtain family's efforts to take their neighbors' land.

Downtain said he has broken no laws. He questioned why a criminal investigation is under way when the issue of adverse possession is a civil matter that should be settled in civil court.

Fenced Off, Frustrated

Frustrated property owners, some with mounting legal costs, say their hands are tied.
"The Downtains' whole MO is to prey on the elderly, pay their (property) taxes, put their names on the title as a tenant in common, and take control of these people's properties," real-estate agent Gregory Higgins said.

"They will confront you. They are violent people," said Higgins, whose elderly client's property has been fenced off.

Downtain denies threatening Higgins or any of the other neighboring property owners.

Riverside resident Barbara Innes tried to list two lots for sale in 2004, only to be told by her mortgage company that there was a "cloud" on the title. The "cloud" turned out to be a claim placed by Hidden Haven Christian School, a home-school run by the Downtains for their children.

Since then, a surveyor and a real-estate agent both quit, claiming they were threatened. Innes said she doesn't have the means to fight.

One Wildomar property owner, Martin Hicks, has sued the Downtains. Hicks, who is represented by his attorney son, Robert Hicks, is scheduled to be back in court on the issue today.

The Hicks say the Downtains scoped out the vacant property around their home, created false business identities and filled in a false blank grant deed purporting to convey the vacant property to themselves, according to court records.

The Downtains maintain in court filings that they are entitled to the property.

Another property owner, Karen Brown, said her attorney advised her it could cost up to $25,000 for her to wrestle her Wildomar property back, although she still has title to it.

She and her sister-in-law Letty Brown own about an acre-and-a-half between them, all of which has been fenced off and loaded up with piles of wood and an old boat.

"Nobody wants to get into anything like this," Innes said. "He's a lawbreaker and we're the ones being penalized."

Longtime Resident

Downtain said his family, which homesteaded 15 acres in the 1920s, has lived on the property for decades.

As he walked among the shady oaks he's known since childhood, Downtain said he could probably have the area cleaned up in 10 days. He passed an old Air Stream trailer, slightly askew, with a rusting screen flapping in the breeze.

There is no electrical service but Downtain said the sun and wind fuel batteries that provide power to the family's home.

Monroe said living conditions on the property are dangerous.

The accumulation of stuff is a testament to his family's uninterrupted presence on the properties over three generations, Downtain said. He called the other property owners "absentee landlords" who've never cared for the land.

"I am a prudent person. I am not a raging maniac," Downtain said.

He described his struggle as a fight for the future of his children.

Downtain said the planned widening of Bundy Canyon Road and a subdivision proposed nearby worries him.

"This is the evidence that I have been here all my life. Nobody has made any attempt whatsoever to maintain this subdivision except my family," Downtain said. "All my life, nobody has ever been around here saying anything to anybody."