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Tabor v. Certain Lands, 1999 WL 236513 (Ala. Civ. App. 1999).
 

Tim Peeples, 3L
 

The Alabama Court of Civil Appeals recently determined that The Nature Conservancy (TNC) is the legal owner of coastal grasslands in Alabama once it pays overdue property taxes. The land at issue, known as Rabbit Island in Orange Beach, Alabama, was the subject of a tax sale to Bruce Tabor prior to the date TNC received title. The trial court and the appeals court determined that because the organization maintained "continuous possession" of the land, TNC had the right to the property notwithstanding Tabor's title acquired via a tax sale.

Lakeside, Ltd., initially acquired Rabbit Island in 1988, along with other portions of nearby Ono Island, which it developed. Lakeside, however, failed to pay the property taxes in 1989, and in June 1990, the State of Alabama purchased Rabbit Island and subsequently sold the property to Tabor by a tax deed in January 1994. Unaware of the tax deed, TNC acquired the property in November 1994. Both TNC and Alabama environmental officers inspected Rabbit Island prior to the transfer of title to TNC and found nothing to indicate Tabor's presence on the property. After acquiring title, TNC visited and inspected the property on a regular basis.

In April 1997, Tabor sought a court order declaring him to be the rightful owner of Rabbit Island. The trial court ruled against Tabor, finding that TNC and its predecessor, Lakeside, maintained continuous possession of the land and held a validly transferred title. Tabor appealed.
 

Legal Possession of the Land

On appeal, Tabor first argued that Alabama Code § 40-10-82 applied giving property owners a three-year window within which to redeem their property when a tax sale is involved.1 According to Tabor, when TNC failed to pay the back taxes within three years of the January 1994 tax sale, it lost the right to redeem the property. TNC countered that it and Lakeside had maintained constructive possession of Rabbit Island from a period pre-dating the 1994 tax sale, and, therefore, Alabama Code § 40-10-83, which grants the original owner an unlimited time period to redeem property if there has been continuous possession of the land, applies.2 As proof of continuous possession and notice of its ownership, TNC offered evidence of regular visits and inspections of Rabbit Island.

The Court of Civil Appeals agreed with TNC, finding that, while there was no actual, physical possession in this case, TNC had continuously maintained "constructive possession" of Rabbit Island. To constructively possess land, the court declared, one must merely use the land in a manner consistent with the nature of the property and in a manner which would give a reasonable person notice that another person claimed an interest in the land. The court found that TNC had used Rabbit Island as a reasonable person would have, and that one in Tabor's position should have recognized the presence of this adverse party. Because of that continuous possession, TNC was eligible for the extended period to redeem the property.

Tabor argued, however, that he had severed TNC's title through adverse possession, a legal method of acquiring title to land by possessing it in the open for a specified period of time. Alabama courts have held that an owner's title, as long as constructive possession is maintained following a tax sale, may only be cut off by adverse possession by the tax purchaser.3 TNC countered that Tabor failed to use the property in a manner that informs the public of his claim to ownership because Tabor only used the land occasionally, did not construct a residence or place any structures on the land, did not post any signs, nor alter any vegetation. Finding for TNC, the court noted Tabor's occasional use of Rabbit Island but found his actions insufficient to establish adverse possession and sever TNC's title.

Finally, Tabor argued that TNC's title was invalid because the deed was not signed by an authorized agent of Lakeside. TNC responded that Allen Cox, an agent of one of Lakeside's general partners, had signed the document. With no evidence that Cox lacked the authority to act on behalf of Lakeside, the Court of Civil Appeals quickly dismissed Tabor's contention.

By ruling in favor of TNC, the Alabama Court of Civil Appeals sends a warning to landowners that possession of property title may not be sufficient, especially regarding valuable coastal property. Rather, constructive or actual possession and knowledge of one's land is necessary.
 

ENDNOTES

1. Ala. Code § 40-10-82 (1993).

2. Ala. Code § 40-10-83 (1993).

3. Hand v. Stanard, 392 So. 2d 1157, 1160 (Ala. 1980).
 
 

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