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S1156aa....................................by LOCAL GOVERNMENT AND TAXATION
PROPERTY - ADVERSE POSSESSION - Amends existing law to provide that adverse
possession shall not be considered established if a written instrument has
been recorded in the real estate records kept by the county recorder of the
county in which the property is located and such written instrument
declares that it was not the intent of a party, by permitting possession or
occupation of real property, to thereby define property boundaries or
ownership; and to provide that a person claiming adverse possession must
present clear and convincing evidence that certain requirements have been
met.
02/12 Senate intro - 1st rdg - to printing
02/13 Rpt prt - to Loc Gov
02/20 Rpt out - rec d/p - to 2nd rdg
02/21 2nd rdg - to 3rd rdg
02/26 To 14th Ord
03/08 Rpt out amen - to engros
03/09 Rpt engros - 1st rdg - to 2nd rdg as amen
03/12 2nd rdg - to 3rd rdg as amen
03/13 3rd rdg as amen - PASSED - 33-0-2
AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
Burtenshaw, Cameron, Danielson, Darrington, Davis, Deide, Dunklin,
Frasure, Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough,
King-Barrutia, Lee, Lodge, Richardson, Risch, Sandy, Schroeder,
Sorensen, Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams,
NAYS -- None
Absent and excused -- Noh, Sims
Floor Sponsor -- Wheeler
Title apvd - to House
03/14 House intro - 1st rdg - to Loc Gov
03/21 Rpt out - rec d/p - to 2nd rdg as amen
03/22 2nd rdg - to 3rd rdg as amen
03/26 3rd rdg as amen - PASSED - 64-2-4
AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow,
Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Gagner,
Gould, Hadley, Hammond, Hansen, Harwood, Henbest(Farley), Higgins,
Hornbeck, Jaquet, Jones, Kellogg, Kendell, Kunz, Lake, Langford,
Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Pearce,
Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali, Schaefer,
Sellman, Shepherd, Smylie, Stevenson, Stone, Tilman, Trail, Wood,
Young, Mr. Speaker
NAYS -- Moyle, Smith
Absent and excused -- Field(20), Loertscher, Pischner, Wheeler
Floor Sponsor -- Higgins
Title apvd - to Senate
03/28 To enrol
Rpt enrol - Pres signed
03/29 Sp signed - to Governor
04/02 Governor signed
Session Law Chapter 290
Effective: 01/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE SENATE
SENATE BILL NO. 1156
BY LOCAL GOVERNMENT AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO ADVERSE POSSESSION OF REAL PROPERTY; AMENDING SECTIONS 5-208 AND
3 5-210, IDAHO CODE, TO PROVIDE THAT ADVERSE POSSESSION SHALL NOT BE CONSID-
4 ERED ESTABLISHED IF A WRITTEN INSTRUMENT HAS BEEN RECORDED IN THE REAL
5 ESTATE RECORDS KEPT BY THE COUNTY RECORDER OF THE COUNTY IN WHICH THE
6 PROPERTY IS LOCATED AND SUCH WRITTEN INSTRUMENT DECLARES THAT IT WAS NOT
7 THE INTENT OF A PARTY, BY PERMITTING POSSESSION OR OCCUPATION OF REAL
8 PROPERTY, TO THEREBY DEFINE PROPERTY BOUNDARIES AND TO MAKE TECHNICAL COR-
9 RECTIONS.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 5-208, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 5-208. CLAIM UNDER WRITTEN INSTRUMENT -- POSSESSION DEFINED. (1) Except
14 as provided in subsection (2) of this section, fFor the purpose of constitut-
15 ing an adverse possession by a person claiming a title founded upon a written
16 instrument, or a judgment or decree, land is deemed to have been possessed and
17 occupied in the following cases:
18 1.(a) Where it has been usually cultivated or improved.
19 2.(b) Where it has been protected by a substantial inclosure enclosure.
20 3.(c) Where, although not inclosed enclosed, it has been used for the
21 supply of fuel, or of fencing timber for the purposes of husbandry, or for
22 pasturage, or for the ordinary use of the occupant.
23 4.(d) Where a known farm or single lot has been partly improved, the por-
24 tion of such farm or lot that may have been left not cleared, or not inclosed
25 enclosed, according to the usual course and custom of the adjoining country,
26 shall be deemed to have been occupied for the same length of time as the part
27 improved and cultivated.
28 (2) Notwithstanding the provisions of subsection (1) of this section,
29 adverse possession shall not be considered established under the provisions of
30 any sections of this code if a written instrument has been recorded in the
31 real estate records kept by the county recorder of the county in which the
32 property is located and such written instrument declares that it was not the
33 intent of a party, by permitting possession or occupation of real property as
34 set forth in subsection (1) of this section, to thereby define property bound-
35 aries.
36 SECTION 2. That Section 5-210, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 5-210. ORAL CLAIM -- POSSESSION DEFINED -- PAYMENT OF TAXES. For the pur-
39 pose of constituting an adverse possession, by a person claiming title not
40 founded upon a written instrument, judgment or decree, land is deemed to have
41 been possessed and occupied in the following cases only:
2
1 (1.) Where it has been protected by a substantial inclosure enclosure.
2 (2.) Where it has been usually cultivated or improved.
3 Provided, however, that in no case shall adverse possession be considered
4 established under the provisions of any sections of this code unless it shall
5 be shown that the land has been occupied and claimed for the period of five
6 (5) years continuously, and the party or persons, their predecessors and
7 grantors, have paid all the taxes, state, county or municipal, which have been
8 levied and assessed upon such land according to law. Provided further, that
9 adverse possession shall not be considered established under the provisions of
10 any sections of this code if a written instrument has been recorded in the
11 real estate records kept by the county recorder of the county in which the
12 property is located and such written instrument declares that it was not the
13 intent of a party, by permitting possession or occupation of real property, to
14 thereby define property boundaries.
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
Moved by Wheeler
Seconded by Bunderson
IN THE SENATE
SENATE AMENDMENTS TO S.B. NO. 1156
1 AMENDMENTS TO SECTION 1
2 On page 1 of the printed bill, in line 33, following "party" insert: "to
3 such instrument"; delete line 35, and insert: "aries or ownership.
4 (3) For purposes of establishing adverse possession pursuant to this sec-
5 tion, a person claiming adverse possession must present clear and convincing
6 evidence that the requirements of subsections (1) or (2) of this section have
7 been met.".
8 AMENDMENTS TO SECTION 2
9 On page 2, in line 13, following "party" insert: "to such instrument"; in
10 line 14, following "boundaries" insert: "or ownership. Provided further, that
11 for purposes of establishing adverse possession pursuant to this section, a
12 person claiming adverse possession must present clear and convincing evidence
13 that the requirements of subsection (1) or (2) of this section have been met".
14 AMENDMENT TO THE BILL
15 On page 2, following line 14, insert:
16 "SECTION 3. An emergency existing therefor, which emergency is hereby
17 declared to exist, this act shall be in full force and effect on and after its
18 passage and approval, and retroactively to January 1, 2001.".
19 CORRECTIONS TO TITLE
20 On page 1, in line 7, following "PARTY" insert: "TO SUCH INSTRUMENT"; in
21 line 8, following "BOUNDARIES" insert: "OR OWNERSHIP, TO PROVIDE THAT A PERSON
22 CLAIMING ADVERSE POSSESSION MUST PRESENT CLEAR AND CONVINCING EVIDENCE THAT
23 CERTAIN REQUIREMENTS HAVE BEEN MET"; and in line 9, following "RECTIONS"
24 insert: "; DECLARING AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION".
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE SENATE
SENATE BILL NO. 1156, As Amended
BY LOCAL GOVERNMENT AND TAXATION COMMITTEE
1 AN ACT
2 RELATING TO ADVERSE POSSESSION OF REAL PROPERTY; AMENDING SECTIONS 5-208 AND
3 5-210, IDAHO CODE, TO PROVIDE THAT ADVERSE POSSESSION SHALL NOT BE CONSID-
4 ERED ESTABLISHED IF A WRITTEN INSTRUMENT HAS BEEN RECORDED IN THE REAL
5 ESTATE RECORDS KEPT BY THE COUNTY RECORDER OF THE COUNTY IN WHICH THE
6 PROPERTY IS LOCATED AND SUCH WRITTEN INSTRUMENT DECLARES THAT IT WAS NOT
7 THE INTENT OF A PARTY TO SUCH INSTRUMENT, BY PERMITTING POSSESSION OR
8 OCCUPATION OF REAL PROPERTY, TO THEREBY DEFINE PROPERTY BOUNDARIES OR OWN-
9 ERSHIP, TO PROVIDE THAT A PERSON CLAIMING ADVERSE POSSESSION MUST PRESENT
10 CLEAR AND CONVINCING EVIDENCE THAT CERTAIN REQUIREMENTS HAVE BEEN MET AND
11 TO MAKE TECHNICAL CORRECTIONS; DECLARING AN EMERGENCY AND PROVIDING RETRO-
12 ACTIVE APPLICATION.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 5-208, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 5-208. CLAIM UNDER WRITTEN INSTRUMENT -- POSSESSION DEFINED. (1) Except
17 as provided in subsection (2) of this section, fFor the purpose of constitut-
18 ing an adverse possession by a person claiming a title founded upon a written
19 instrument, or a judgment or decree, land is deemed to have been possessed and
20 occupied in the following cases:
21 1.(a) Where it has been usually cultivated or improved.
22 2.(b) Where it has been protected by a substantial inclosure enclosure.
23 3.(c) Where, although not inclosed enclosed, it has been used for the
24 supply of fuel, or of fencing timber for the purposes of husbandry, or for
25 pasturage, or for the ordinary use of the occupant.
26 4.(d) Where a known farm or single lot has been partly improved, the por-
27 tion of such farm or lot that may have been left not cleared, or not inclosed
28 enclosed, according to the usual course and custom of the adjoining country,
29 shall be deemed to have been occupied for the same length of time as the part
30 improved and cultivated.
31 (2) Notwithstanding the provisions of subsection (1) of this section,
32 adverse possession shall not be considered established under the provisions of
33 any sections of this code if a written instrument has been recorded in the
34 real estate records kept by the county recorder of the county in which the
35 property is located and such written instrument declares that it was not the
36 intent of a party to such instrument, by permitting possession or occupation
37 of real property as set forth in subsection (1) of this section, to thereby
38 define property boundaries or ownership.
39 (3) For purposes of establishing adverse possession pursuant to this sec-
40 tion, a person claiming adverse possession must present clear and convincing
41 evidence that the requirements of subsections (1) or (2) of this section have
42 been met.
2
1 SECTION 2. That Section 5-210, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 5-210. ORAL CLAIM -- POSSESSION DEFINED -- PAYMENT OF TAXES. For the pur-
4 pose of constituting an adverse possession, by a person claiming title not
5 founded upon a written instrument, judgment or decree, land is deemed to have
6 been possessed and occupied in the following cases only:
7 (1.) Where it has been protected by a substantial inclosure enclosure.
8 (2.) Where it has been usually cultivated or improved.
9 Provided, however, that in no case shall adverse possession be considered
10 established under the provisions of any sections of this code unless it shall
11 be shown that the land has been occupied and claimed for the period of five
12 (5) years continuously, and the party or persons, their predecessors and
13 grantors, have paid all the taxes, state, county or municipal, which have been
14 levied and assessed upon such land according to law. Provided further, that
15 adverse possession shall not be considered established under the provisions of
16 any sections of this code if a written instrument has been recorded in the
17 real estate records kept by the county recorder of the county in which the
18 property is located and such written instrument declares that it was not the
19 intent of a party to such instrument, by permitting possession or occupation
20 of real property, to thereby define property boundaries or ownership. Provided
21 further, that for purposes of establishing adverse possession pursuant to this
22 section, a person claiming adverse possession must present clear and convinc-
23 ing evidence that the requirements of subsection (1) or (2) of this section
24 have been met.
25 SECTION 3. An emergency existing therefor, which emergency is hereby
26 declared to exist, this act shall be in full force and effect on and after its
27 passage and approval, and retroactively to January 1, 2001.
STATEMENT OF PURPOSE
RS 10998
Prohibits use of the old common-law doctrine of adverse
possession from consideration in filing suits to resolve boundary
disputes in two sections of Idaho Code. Section 1, amending 5-
208, Idaho Code applies when a person claims a title founded upon
a written instrument or a judgement or decree. Section 2,
amending 5-210, Idaho Code applies when claiming title founded
upon a written instrument or a judgement or decree. Between these
two sections, there were over 100 citations, indicating the
vagueness and uncertainty of present code. Government agencies,
by law cannot be subjected to the doctrine of adverse possession.
Private property should not be exposed to such uncertainty.
FISCAL IMPACT
There is no cost to any state agency.
Contact
Name: Sen. Wheeler 332-1409
Phone: Sen. Bunderson 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE S 115