Legislature(2003 - 2004)

03/11/2003 01:32 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    SB 93-ADVERSE POSSESSION                                                                                
CHAIR CON BUNDE called the Senate Labor and Commerce Standing                                                                 
Committee meeting to order at 1:32 p.m. and announced SB 93 to                                                                  
be up for consideration. All members were present.                                                                              
MS. AMY SEITZ, staff to Senator Wagoner, sponsor of SB 93,                                                                      
described the legislation as follows:                                                                                           
     Adverse   possession  is   a   doctrine  that   rewards                                                                    
     possession  of   land  at  the  expense   of  the  true                                                                    
     landowner. This doctrine was born  800 years ago during                                                                    
     the Middle  Ages under circumstances that  do not apply                                                                    
     During the settlement of North  America, our courts and                                                                    
     legislatures adopted  the policy  that it is  better to                                                                    
     put land  to use than  not. Adverse possession  was the                                                                    
     tool used  to transfer title  from the idle  true owner                                                                    
     to  the industrious  adverse possessor,  thus rewarding                                                                    
     squatters for  making use of wild  lands. Still, today,                                                                    
     some feel that it is best  to make use of land an owner                                                                    
     leaves idle. However, the  majority of undeveloped land                                                                    
     belongs  to the  state and  federal governments.  Under                                                                    
     existing  laws,  a person  cannot  take  land from  the                                                                    
     government through adverse possession.                                                                                     
     SB 93  simply accords  equal dignity and  protection to                                                                    
     the  private  land  ownership rights  by  amending  the                                                                    
     current statute  that allows  land to  be taken  by bad                                                                    
     faith  trespassers.   Because  of   squatters'  rights,                                                                    
     private landowners  in Alaska have the  harsh burden of                                                                    
     policing their  large expansive lands to  insure that a                                                                    
     squatter has  not taken up residency.  This legislation                                                                    
     does  not   touch  the  statute  that   allows  adverse                                                                    
     possession claims  to property based on  color of title                                                                    
     and  it  will  not extinguish  already  vested  adverse                                                                    
     possession claims.                                                                                                         
MR.   RUSSELL   DICK,   Natural   Resources   Manager,   Sealaska                                                               
Corporation, applauded  Senator Wagoner's  efforts to  bring this                                                               
bill forward.  Sealaska Corporation  is the  regional corporation                                                               
under  the  Alaska Native  Claims  Settlement  Act for  Southeast                                                               
Alaska  and represents  over 16,000  shareholders. Sealaska  owns                                                               
290,000 acres of fee estate  land throughout Southeast Alaska and                                                               
has an entitlement  that is expected to reach  upwards of 340,000                                                               
to 350,000  acres. Sealaska is  the largest private  landowner in                                                               
Southeast  Alaska   and  supports   the  protections   this  bill                                                               
MR. DICK didn't  think anyone would doubt the  economic burden of                                                               
actively policing large  expanses of land or the fact  that it is                                                               
[not] the  best use of  Sealaska's economic resources.  The issue                                                               
goes beyond  the corporations that  have the resources  to police                                                               
tracts of land; it affects small  mom and pop property owners who                                                               
don't have the same financial resources. He maintained:                                                                         
     The  doctrine  of  adverse possession  is  inconsistent                                                                    
     with the recognition of  private property ownership and                                                                    
     its  associated rights.  This is  made ever  more clear                                                                    
     through the fact that state  and federal land is immune                                                                    
     to  the  doctrine  of adverse  possession  due  to  the                                                                    
     expansive  nature of  its lands  and the  remoteness of                                                                    
     its  lands  and  the economic  burden  associated  with                                                                    
     having  to  police  these large  tracts  of  lands.  We                                                                    
     simply   believe   that    private   property   owners,                                                                    
     regardless   of  their   size,   regardless  of   their                                                                    
     financial  resources,  should  be afforded  those  same                                                                    
CHAIR  BUNDE  asked  what  Sealaska  does now  to  enforce  a  no                                                               
trespassing policy and whether it  has ever had to follow through                                                               
on an adverse possession case.                                                                                                  
MR. DICK replied  that he has been at Sealaska  for six years and                                                               
knows of  one case. It  was not on ANGSA  land, but on  some real                                                               
estate in  Cordova. Sealaska  had to go  through a  lengthy legal                                                               
proceeding  to  get  the trespasser  evicted  from  the  property                                                               
before the adverse  possession claim kicked in. At  this point, a                                                               
large portion  of its property is  on Prince of Wales  Island and                                                               
it  has hired  a land  technician security  guard to  protect the                                                               
corporate  assets   in  terms  of  existing   timber  operations.                                                               
However, the  guard does  not have  the time,  a vehicle,  or the                                                               
capabilities to  get to remote  areas to insure  that trespassers                                                               
aren't taking residence on Sealaska lands.                                                                                      
SENATOR STEVENS asked  how long a squatter has to  be on the land                                                               
to make a claim.                                                                                                                
MR.  DICK  replied that  the  length  of  time  for a  bad  faith                                                               
squatter is 10 years.                                                                                                           
SENATOR FRENCH said this seems to  be a phenomenon in the western                                                               
states  where there  are big  land  holdings. He  asked if  other                                                               
states have taken the same action.                                                                                              
MR. DICK replied  the only other state he is  aware of is Oregon,                                                               
which imposed  a requirement  that an  adverse possessor  must be                                                               
acting in good faith.                                                                                                           
MR. JON  TILLINGHAST, legal counsel to  the Sealaska Corporation,                                                               
informed members that  this bill was introduced in  a longer form                                                               
last year  and covered  the two types  of adverse  possession. He                                                               
     One is  the squatter who  simply waits for 10  years to                                                                    
     pass  without  anyone  noticing  him.  The  other,  and                                                                    
     probably the  most common in  Alaska, is  where someone                                                                    
     builds their  fence to the  right of where it  ought to                                                                    
     be  built and  everyone  has always  agreed that's  the                                                                    
     property line, but it really isn't.                                                                                        
     That  later form  of adverse  possession  is where  the                                                                    
     adverse possessor acts in good  faith and he acts under                                                                    
     color of title. In other words,  he's got a deed to his                                                                    
     house; it's just  that he built the fence  in the wrong                                                                    
     place. This  year the bill doesn't  touch that statute.                                                                    
     The only  ones that will  be affected by this  bill are                                                                    
     people  who have  adversely possessed  property without                                                                    
     any   written  instrument   to  support   their  claim,                                                                    
SENATOR  FRENCH  asked  if  SB  93 does  not  affect  good  faith                                                               
MR. TILLINGHAST said that is correct  and added that a good faith                                                               
possessor  must have  a  piece of  paper on  which  the claim  is                                                               
SENATOR  FRENCH asked  if this  bill would  eliminate a  person's                                                               
color of title or whether it allows a person to pursue it.                                                                      
MR. TILLINGHAST replied that it lets  a person pursue it. All the                                                               
law requires  is a written  instrument of some sort.  He believes                                                               
the statutory language  that governs color of title  on the basis                                                               
of  a written  instrument  needs  to be  tightened  up, but  when                                                               
Sealaska  tried to  deal  with that  as well,  the  bill got  too                                                               
heavy.  SB 93 is more focused.                                                                                                  
SENATOR FRENCH said he was curious  about the language on page 1,                                                               
line 9, that  reads,  "(b) An  action may be brought  at any time                                                               
by  a  person  whose  ownership  interest  in  real  property  is                                                               
recorded  under AS  40.17  to". He  thought  that meant  property                                                               
under color of title.                                                                                                           
MR. TILLINGHAST  replied that the  section that will  be changed,                                                               
AS  09.10.030, talks  about what  the record  title owner  can or                                                               
can't do. Another section, AS  09.45.052, deals with "under color                                                               
of title." The  part of the statute that is  being left untouched                                                               
says if an individual possessed  title under color in good faith,                                                               
that individual will win that lawsuit.                                                                                          
SENATOR FRENCH asked  if, under the new section,  an action could                                                               
be taken against him at any time if he squatted for 20 years.                                                                   
MR.  TILLINGHAST said  that is  correct. The  period for  kicking                                                               
someone off land  in England used to be up  to 20 years. However,                                                               
the number  of years  gets shorter  as you  move west  across the                                                               
United States. The time period is  20 years in Connecticut, but 7                                                               
or  8 years  in Utah.  Back in  the 19th  Century, Western  state                                                               
legislators  liked  the  squatters' rights  doctrine  because  it                                                               
enabled homesteaders to get land from the railroads.                                                                            
SENATOR  SEEKINS asked  if the  lands Sealaska  has title  to are                                                               
recorded under AS 40.17.                                                                                                        
MR. DICK responded they are.                                                                                                    
SENATOR  SEEKINS  asked  if  any  of  their  recorded  lands  are                                                               
riparian lands, navigable streams or submerged lands.                                                                           
MR.  DICK replied  the corporation  has lands  existing in  those                                                               
areas, but it  doesn't get title to submerged  lands or navigable                                                               
streams; it gets title to  the subsurface estate underneath those                                                               
SENATOR SEEKINS  asked if the  corporation gets title  to natural                                                               
resources under any navigable streams.                                                                                          
MR. DICK replied yes.                                                                                                           
SENATOR SEEKINS asked  by what authority. He said  he didn't want                                                               
to have  an inadvertently  quiet title act  that would  cause the                                                               
state to give away some of its lands.                                                                                           
MR. TILLINGHAST said  he didn't think anything in  the bill would                                                               
do that. He related that  when Sealaska successfully defended the                                                               
Cordova situation,  Sealaska asked him  how the problem  could be                                                               
fixed.  He  responded that the state and  federal governments are                                                               
exempt  from adverse  possession.  Sealaska wanted  to know:  Why                                                               
them and not  us? He answered that the rationale  the state gives                                                               
is that  its land holdings  are largely remote and  policing them                                                               
would  be a  financial burden,  however Sealaska  is in  the same                                                               
SENATOR SEEKINS  said he  agrees with  Mr. Tillinghast.  He added                                                               
that the  State of  Alaska doesn't have  a statute  that corrects                                                               
for surface  movement from  earthquakes and  such and  he thought                                                               
that should be addressed.                                                                                                       
MR. PETE PUTZIER, Assistant Attorney  General, said he represents                                                               
the Department  of Transportation and Public  Facilities and that                                                               
SB  93 would  do away  with the  doctrine of  adverse possession,                                                               
which has  been around a long  time. Its purpose is  to provide a                                                               
practical and efficient means of clearing title. He explained:                                                                  
     While it  is certainly true  that Alaska does  not need                                                                    
     to follow what other states  are doing, at a minimum it                                                                    
     should  perhaps give  the committee  pause to  consider                                                                    
     whether doing away with adverse  possession is truly in                                                                    
     the state's best interests....                                                                                             
     In  regards  to road  projects,  DOT  has thousands  of                                                                    
     miles of roadway  existing in Alaska and  many of those                                                                    
     have been  in place  for over 10  years. DOT  relies on                                                                    
     the doctrine  of adverse possession  all the time  as a                                                                    
     means  of clearing  title. That's  significant for  the                                                                    
     following  reason  that over  90  percent  of the  road                                                                    
     projects and  road improvement projects that  we do are                                                                    
     federally  funded and  they  cannot  proceed without  a                                                                    
     certification being provided  to the federal government                                                                    
     that  the title  is  clear. If  the adverse  possession                                                                    
     doctrine would  be abolished,  the practical  impact to                                                                    
     DOT would potentially be to  delay the road improvement                                                                    
     projects  anywhere  from 1  to  3  years as  the  title                                                                    
     clearing process occurs.                                                                                                   
As an  example, he said  DOTPF has a  gravel-to-pavement project,                                                               
which  improves gravel  roads by  paving  them. They  are in  the                                                               
areas of Tok,  Fairbanks, Delta, Healy, Manly,  Cordova and Nome.                                                               
An average  of $7 million  per year has  been spent for  the last                                                               
five years  on road improvement projects.  Potentially, under the                                                               
proposed  changes  in  SB  93, those  projects  would  either  be                                                               
cancelled  or  delayed for  years  in  an  effort to  include  or                                                               
encompass  some kind  of a  right-of-way acquisition  process. He                                                               
     The reason  is this. Currently,  the state can  rely on                                                                    
     the  unchallenged title  to  the roads  as  a means  to                                                                    
     provide a  certification of title. In  other words, the                                                                    
     roads have  been there  in excess of  10 years  and DOT                                                                    
     then makes  the assertion under the  adverse possession                                                                    
     doctrine that it believes that  it has title - the road                                                                    
     existed  for  a  long  time and  we  can  provide  this                                                                    
     certification.  My  discussions with  the  right-of-way                                                                    
     agents have  indicated to me that  with this amendment,                                                                    
     they would not necessarily be  able to do that any more                                                                    
     and  would  have  to implement  a  formal  right-of-way                                                                    
     acquisition  process.  In  short, the  development  and                                                                    
     improvement  of existing  roads in  the state  could be                                                                    
     seriously  and  negatively  impacted  by  the  proposed                                                                    
     change in SB 93.                                                                                                           
     I guess  I would impress  upon you that title  is often                                                                    
     not clear.  There are oral conveyances  or old records,                                                                    
     missing  records, people  die,  memories fade,  surveys                                                                    
     may   be   incorrect,   deed  descriptions   might   be                                                                    
     incorrect. On  a given length  of road, there  might be                                                                    
     multiple  ownership   interests  spanning   many  years                                                                    
     including federal interests,  private interests, Native                                                                    
     land  interests and  so on.  So any  road project  will                                                                    
     involve an entire patchwork  of ownership interests and                                                                    
     sometimes for better or worse,  title might be unclear.                                                                    
     Now adverse  possession is  a practical  and reasonable                                                                    
     means of clearing these  various interests and allowing                                                                    
     the state to perform valuable road improvement work.                                                                       
     There are always going to  be situations, not only now,                                                                    
     but in  the future, where  a title is  unclear. Adverse                                                                    
     possession clears  the title in essence  by saying that                                                                    
     the  road exists  and is  being used  in some  open and                                                                    
     notorious fashion and  the state can rely on  that as a                                                                    
     means  of   providing  a  certification  that   it  has                                                                    
     provided  to the  federal  government.  SB 93  arguably                                                                    
     would not  allow that and  again, for better  or worse,                                                                    
     sometimes locations of  the road might be  in the wrong                                                                    
     position  for  whatever  reasons. DOT  as  a  practical                                                                    
     matter might  be considered a  bad faith  squatter, but                                                                    
     if the  road has been  here for  over 10 years,  we can                                                                    
     nevertheless     proceed     to    provide     whatever                                                                    
     certifications are necessary and  proceed with our road                                                                    
     improvement  such   as  under   the  gravel-to-pavement                                                                    
     I focused my comments on  DOT's interests, but the bill                                                                    
     would affect not only DOT,  of course, but other public                                                                    
     entities  as  well  as   landowners  across  the  state                                                                    
     without there  being some  time period  - 10  years, 15                                                                    
     years, 20  years -  within which  title can  be cleared                                                                    
     [indisc.]  effectively be  left  in  limbo and  without                                                                    
     adverse possession, a valuable  means of clearing title                                                                    
     in the state will have been lost.                                                                                          
CHAIR  BUNDE asked  him if  there  is any  compromise that  would                                                               
allow the state  to use a specific mechanism  that wouldn't exist                                                               
for the general public.                                                                                                         
MR. PUTZIER replied  that he couldn't think of  an exception that                                                               
could be  carved out for DOTPF  at the moment but  he would think                                                               
on it.                                                                                                                          
CHAIR BUNDE  said it  is interesting  to note  the state  can use                                                               
adverse possession  to take  private land,  but a  private person                                                               
can't use it to take state lands.                                                                                               
2:00 p.m.                                                                                                                       
SENATOR  SEEKINS asked  if  DOTPF would  first  look at  recorded                                                               
deeds in a section of land it was thinking about working in.                                                                    
MR. PUTZIER responded  if it's a brand new  road, typically DOTPF                                                               
would  go  through  a formal  right-of-way  acquisition  process,                                                               
which  is extremely  long and  complicated. He  was referring  to                                                               
thousands of miles of existing roadway.                                                                                         
SENATOR SEEKINS asked if he  would only be concerned about future                                                               
roads if existing roads were grandfathered in.                                                                                  
MR. PUTZIER replied  that he thought the same  issues would arise                                                               
on future  roads, but as recordkeeping  improves with technology,                                                               
there   will  be   fewer  oral   conveyances  and   less  missing                                                               
SENATOR SEEKINS  asked what  would happen if  DOTPF just  went to                                                               
the federal  government and  said it had  clear title  citing the                                                               
doctrine of adverse possession.                                                                                                 
MR. PUTZIER replied that DOTPF  provides certification that title                                                               
has  been   cleared,  but  doesn't  mention   using  the  adverse                                                               
possession doctrine.  If the federal  agency wants  background on                                                               
that determination, it has the right to ask.                                                                                    
SENATOR SEEKINS asked if the federal agency normally asks.                                                                      
MR. PUTZIER replied that he didn't think so.                                                                                    
SENATOR  FRENCH asked  if  all land  ownerships  are recorded  in                                                               
MR. PUTZIER replied  that he didn't think so and  that is part of                                                               
the problem.                                                                                                                    
SENATOR FRENCH  asked if  it is  possible for  someone to  have a                                                               
piece of paper  at home saying they  own a piece of  land, but it                                                               
isn't recorded anywhere.                                                                                                        
MR. PUTZIER  replied that  could happen, in  which case  he would                                                               
have  to see  if  that piece  of  paper met  AS  40.17, which  is                                                               
referenced in (b), which would preserve the person's right.                                                                     
MS.  MILLIE MARTIN  said  she  is an  interested  citizen who  is                                                               
representing  herself.  She thought  elements  of  this bill  are                                                               
desperately needed,  in particular  the provision  that addresses                                                               
squatters' rights.  She believes  it is  wrong that  people could                                                               
live on  her property for  10 years and use  it as if  they owned                                                               
it, although  they didn't pay  taxes and  didn't buy it,  and can                                                               
claim the land under present adverse possession laws.                                                                           
She asked if [SB93] would  apply to prescriptive easements as she                                                               
thought  they  are  particularly  important in  this  state.  Her                                                               
concern was  that it is  often impossible  to access a  parcel of                                                               
land on the  section line when land is being  developed in Alaska                                                               
because of the topography. Therefore,  access is built on someone                                                               
else's  land  and  the  owners  cannot  handshake  an  agreement.                                                               
Without  a paper  trail and  prescriptive  easements, a  property                                                               
owner could lose the right  to use their property. She concluded,                                                               
"And  so I  think there  is  a legitimate  need for  prescriptive                                                               
MS.  SHIRLEY SCHOLLENBERG,  an Anchor  Point  resident, said  she                                                               
also  has a  concern with  prescriptive easements,  especially as                                                               
they apply to  trail maintenance in the Homer area.  She said she                                                               
wouldn't  support  this  bill  if  it did  away  with  them.  She                                                               
supports getting  rid of the  idea that a person  could illegally                                                               
live on another person's land and eventually own it.                                                                            
CHAIR BUNDE asked Ms. Seitz  to address the issue of prescriptive                                                               
MS. SEITZ  replied that Legislative  Legal and  Research Services                                                               
responded to  that issue this  morning and it was  the attorney's                                                               
opinion that prescriptive easements are included in this bill.                                                                  
CHAIR BUNDE  asked if this problem  could be fixed with  a longer                                                               
time limit, such as 15 to 20 years.                                                                                             
MS. SEITZ replied  they weren't sure of all the  issues that deal                                                               
with prescriptive easement, but they  are looking into other ways                                                               
of going about it.                                                                                                              
MR.  TILLINGHAST  explained that  his  comments  applied to  both                                                               
prescriptive easements  and the DOTPF  roads. Under section  2 of                                                               
the bill, any  road or public trail across  private property that                                                               
has been there  for 10 years is unaffected by  the bill. The bill                                                               
applies only  to the establishment of  new prescriptive easements                                                               
across private  property. He  noted that  he uses  a prescriptive                                                               
easement  in Juneau  on the  Dan  Moeller trail  because it  goes                                                               
through someone's private lot.                                                                                                  
He explained  the bill  says if  a party wants  to have  a public                                                               
access point  through private property  or a public  road through                                                               
private property, unfortunately  that party will have  to pay for                                                               
it. Sealaska's  position is that's  not a problem if  people have                                                               
prospective notice of  that.  He felt that people  like those who                                                               
testified  via teleconference  deserve reassurance  that existing                                                               
access  points  through private  property  are  not going  to  be                                                               
affected by the bill.                                                                                                           
CHAIR BUNDE asked  if the bill will have  any retroactive impacts                                                               
or whether it only applies to actions in the future.                                                                            
MR. TILLINGHAST replied [it is prospective].                                                                                    
MR. MIKE  DOWNING, Chief Engineer,  DOT/PF, said it  appears that                                                               
Sealaska's  attorneys and  DOT/PF's  attorneys  have a  different                                                               
view of how  this bill would actually affect  the highway system.                                                               
If it's  not going  to affect  the highway  system, DOTPF  is not                                                               
concerned about  it. However, right  now DOTPF believes  it will.                                                               
He  wanted  an  opportunity  to   get  further  clarify  on  that                                                               
CHAIR BUNDE said that  it is not his policy to  move bills out of                                                               
committee without a  chance to work out issues.  He announced the                                                               
bill would be held in committee for further work.                                                                               

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