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In Oklahoma if a easement holder pass the real property taxes

Resolved Question:

In Oklahoma if a easement holder pass the real property taxes of the fee owner, can he utilize the Oklahoma Power of Sale Forclosure statute to foreclose if the fee owner fails to reimburse easement holder?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Pro replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

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Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


I just want to make sure I understand your question - that if an easement holder pays the property taxes for the easement (the easement holder is not the owner of the land) can they foreclose upon and own the land if the owner doesn't reimburse them?

Is that what you are asking?
Customer: replied 1 year ago.

yes but the easement holder would be paying the property taxes for the entire parent parcel not just the easement area.

Expert:  Law Pro replied 1 year ago.
What you are sort of talking about is an adverse possession claim.

You can't "foreclose" on the property because you don't have a security interest in the property - there isn't a mortgage that's been executed and recorded at the Recorder of Deeds as a security interest in the property allowing for you to foreclose if the debtor defaults in their payments to you.

As to "adverse possession":


In common law, through the legally recognized concept of adverse possession, a squatter can become a bona fide owner of property without compensation to the owner. Adverse possession is the process by which one acquires the title to a piece of land by occupying it for the statutory required number of years - in OK - that's 15 years.


The Following Must Be Proven

Actual – You actually acted in the manner of an owner of the property.

Open & Notorious – You engage in acts of possession consistent with the property at issue in a manner which was capable of being seen. (This does not mean that you must have been observed in your acts of ownership but, had the actual owner or members of the public been in a position to see you, your acts must have been observeable). You need not use the property in a manner that exceeds that which would be expected of the actual owner – that is, it may be possible to claim adverse possession of a vacation property on the basis of use only during the vacation season, or to claim adverse possession of a vacant parcel of land by engaging in typical acts of maintenance for the parcel.

Exclusive – The adverse possessor does not occupy the land concurrent with the true owner or share possession in common with the public. One does not have to exclude others from the land in order to claim “exclusive” use, but during the statutory period the person claiming title by adverse possession must have been the only person to treat the land in the manner of an owner.

Hostile – Hostility exists where a person possesses the land of another intending to hold to a particular recognizable boundary regardless of the true boundary line. That is, possession is “hostile” to the title owner’s interest in the property. If possession was not hostile, it may still be possible to advance a claim of ownership under a theory of “acquiescence”. You cannot claim “adverse possession” if you are engaged in the permissive use of somebody else’s land.

Under Cover of Claim or Right – Either when the person claiming the property makes the claim based upon constructive possession under color of title (e.g., there is an error in the legal description in their deed leading them to believe they own part of a neighboring property), or makes the claim based upon actual use and possession of the area of land at issue for the statutory period

Continuous & Uninterrupted – All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. It may be possible to claim adverse possession even if there is a transfer of ownership through the principle of “tacking” – for example, a former owner’s twelve years of adverse possession can be “tacked” to the present owner’s eight years, for a cumulative twenty years of adverse possession.

The Statutory Period – The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”.

 

 

Defenses to a claim of adverse possession are:

 

While the following list is far from exhaustive, these defenses are very often brought in adverse possession actions:

Permissive Use – If the actual owner has granted the claimant permission to use the property, the claim of “adverse possession” cannot be deemed “hostile” and thus fails.

Public Lands – Government-owned land may be exempt from adverse possession.

Insufficient Acts – Although it is conceded that the claimant engaged in some use of the property, it is alleged that these acts were not sufficient to amount to acts suggesting a claim of ownership.

Non-Exclusive Use – Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner.

Insufficient Time – Even if various elements of adverse possession were met, it is alleged that the adverse possession did not last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.

 

 


So you would not have met the statutory requirements for adverse possession in OK.



As to the OK "Power of Sale" Forclosure - The non-judicial process of foreclosure is used when a "power of sale" clause exists in a mortgage or deed of trust. A "power of sale" clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the "Power of Sale Foreclosure Guidelines".


If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed.


So, given the facts and circumstances you present - you would not be able to avail yourself of the "power of sale" foreclosure.

In your situation you are limited to filing suit against the property owner in small claims court for reimbursement of the monies you paid towards the property taxes.


I am sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers, even when an answer is not favorable to the customer.
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