Estate

Q: My question is about a "court decree" issued by a judge, and it involves a set of circumstances that may be difficult to believe.
 

About 25 years ago, the U.S. Government took about 200 acres of my grandmother's property for use as a wildlife refuge. The county, when deeding over the property, removed 80 acres of her property from the tax rolls that was not intended for the government.

Years later there was a lawsuit against the trustee of my grandmother’s estate. In that lawsuit the judge issued a final decree for the trustee to put all property into a trust. That trust was to be with a bank’s trust department. The 80 acres in question was left out of this trust decree because at that time the 80 acres was removed from the tax rolls and was missed by whoever prepared the deeds.

There is now additional litigation and the trustee of my grandmother's estate is trying to get the property back into the estate. What should we do to rectify this situation?

A: Your situation is rather unusual. Your grandmother must have had quite a large parcel of land and it seems that you may not have had the land that was taken by the federal government surveyed along with the remaining acreage.

If you had obtained surveys you should have had accurate legal descriptions for the land taken and the land retained by your grandmother.

Without the survey, the county government must have used its own methods for determining what land was conveyed and what land was retained by your grandmother. When that happened, the county government records were changed and the 80 acres were left in limbo.

If the trustee of your grandmother’s estate followed the direction of the court and conveyed “all” property to the trust, you should still be able to enforce that judgment against the trustee for the missing acreage. But it probably won’t be that simple. The court order may have followed the same descriptions as were available at the time of the taking by the federal government and the court judgment.

If the court judgment was specific as to what property was to be conveyed to the trust and listed the property by legal description, the court judgment would have omitted the missing acreage. If there was an omission, you might have to reopen the case to have the judgment modified after all these years to correct the mistake.

The problem you face is proving that the court would have or should have included the missing acreage in the original judgment. Sometimes making this argument can reopen the whole case and allow parties to reintroduce old issues and have to relitigate those same issues that were taken care of years ago.

From a different perspective, there is a bigger mystery to your question. If all this happened 25 years ago, who has possessed and used the 80 acres and claimed them as his or hers? That person may now be the rightful owner to the land.

If the beneficiaries of the bank trust held the 80 acres, along with the other land, and treated the 80 acres as their own, to the exclusion of all others, you might find that you won’t have to relitigate the old issues again.

You might be able to claim ownership of the land through adverse possession. That is a claim to own the land by virtue of having claimed it as your own, managed it, kept other people from using it, paying the expenses to maintain it. The only issue you might have is with the real estate taxes. In some instances, adverse possession claims may require the payment of real estate taxes. If the payment of real estate taxes for the 80 acres was included in the amounts the beneficiaries of the trust paid, you might be in great shape.

One thing to remember: to make a claim in adverse possession, the people who claim ownership can never have claimed that the land was anything but theirs.

Obviously your case is rather complicated and probably has many other issues involved. You would be wise to take all of your paperwork and current information to an attorney that has successfully litigated adverse possession cases or has extensive knowledge of real estate law in your area.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com.