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COA: State can't claim adverse possession

January 1, 2008
The state can't obtain title to a disputed tract of land through adverse possession because the state can't satisfy the tax requirements in Indiana statute regarding adverse possession, the Indiana Court of Appeals ruled today in a case of first impression.

In State of Indiana v. Jeanette Serowiecki, No. 56A04-0710-CV-576, the state appealed the trial court's grant of summary judgment in favor of Jeanette Serowiecki on the state's complaint to quiet title to an 18.6-acre tract of land in Newton County. Serowiecki is trustee under the provisions of the Louise Sikora Declaration of Trust, which claims to be the owner of the disputed tract of land.

The state believed it acquired title to the disputed tract of land because it assumed the property boundary was an angled line running along a ditch. Louise Sikora and the trust argued and provided documents to show that the property boundary was actually a north-south boundary line and that Sikora was the owner of the property.

The Court of Appeals affirmed the grant of summary judgment in favor of Serowiecki. The state incorrectly assumed the ditch on the disputed tract of land was the property line, wrote Judge Ezra Friedlander, and that didn't give them a legal title to the land.

The state also made an argument that it obtained title to the land through adverse possession. However, to make a claim of adverse possession, a claimant must show that he or she paid and discharged all taxes and special assessments on the land during the period the claimant says they possessed the land adversely. But the state doesn't pay property taxes and can't satisfy that element under Indiana Code Section 32-21-7-1, wrote the judge.

When the legislature enacted the adverse-possession tax statute, the language made it so the government could never obtain property through adverse possession.

"If an exception is to be made, it is for our legislature to so provide," wrote Judge Friedlander.

He expounded in a footnote, "We would observe that the application of adverse possession seems particularly inappropriate and perhaps inequitable when a governmental entity is involved, especially in light of takings jurisprudence and our system of property rights."
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