Adverse Possession

Let us assume a hypothetical situation in which you have been maintaining property which meets the criteria for adverse possession as given according the following statute:

formatting link

Let us further assume that this is part of an urban residential property, and which consists of about 1000 square feet, along two property lines, formed by old fences a half-dozen feet from your plotted property line.

Assume you have, for 20 years, maintained this property by mowing it as needed whenever you mowed your real propety. Additionally, assume that the neighbors on both affected sides are unaware of the discrepency, and consider the fenceline to be the actual property line.

Assuming you just discovered this situation at a time in which you are planning to build your own perimeter fence, would you, A.) build your fence one the line of the existing fence, thus taking advantage of the adverse possession to which you are legally entitled, or B.) build your fence along your plotted property line?

Personally, I would choose option B, to both avoid future conflicts with future property owners, as well as to not be a dick about it.

What are your thoughts?

Jon

Reply to
Jon Danniken
Loading thread data ...

I'd talk to the neighbors. Not seeing the property, you may actually cause some problems if you put the fence on your line. Do the other property owners have easy access to the land in question? Will you create an inaccessible no-mans-land that is not easily mowed? Do the neighbors incur some expense to move their fences?

They may just agree to leave things as they are if the land is of little use to them and not contest anything. In any case, you may open up some expensive legal situations even if the law is on your side. All you need is the wrong judge.

Reply to
Ed Pawlowski

without reading the link above, I believe that not only do you have to have had "possession" (and I doubt that mowing it would qualify) and the original owners need to have been aware of the possession

and then there is the issue of property taxes: claiming the property, after paying legal fees would undoubtedly put you at liability for back taxes

Reply to
Malcom "Mal" Reynolds

Since grazing cattle isn't sufficient to establish adverse possession I doubt that mowing it is sufficient. Plus your "possession" has not be adverse to the real owner. And if the real owner wasn't even aware of this it's not a "hostile" possession. I don't think you have a leg to stand on. It would be different if you had been using this strip to access your garage, that could have been considered hostile, open, notorious, and adverse to the real owner and at the least you might have a good chance to get an easement to continue such use if the owner suddenly decided he didn't like you and told you to get off. But mowing it, ... don't think so...

Reply to
Ashton Crusher

I also didn't read the link but most such laws and legal rulings require that the proper owners "knew or _should have_ known.

In the theoretical situation, the real owners probably could claim they couldn't have known unless they had some reason to get a survey.

Harry K

Reply to
Harry K

The existing fences can be assumed to be either partial (dilapidated) fences with multiple points access through the fenceline, or low (three foot high) fencing. As such, the "no-mans-land" would be accessible by them.

Good things to think about; thanks Ed.

Jon

Reply to
Jon Danniken

If there was a fence, even one in disrepair, that was between the neighbors and this piece of land, that kept the neighbors from walking on the land, except maybe to get a ball or newspaper that got tossed there, that probably meets the standard.

I think you're wrong about this. "Hostile" doesn't mean you growl at the neighbors when they come near the boundary. It's definition, which varies some by state, can be found on the web. But as in my previous paragraph, the existing fence probably makes his possessoin hostile.

But I do agree that it's not cut and dried. If only because we've only heard one side of the story. Very unlikely but perhaps both neighbors gave the OP's predecessor a 50 year lease on the land, rent paid in advance, which expires tomorrow.

Open and notorious are also covered by the fence.

Reply to
micky

What Jon Danniken is saying MIGHT be true, depending on where you live.

Both Canada and the USA inherited our system of laws from Britain, and

600 years ago in Britain, forgery was the quickest, easiest way to get rich. With no public education administered by the government and paid for by taxes, few people could read or write. And, that was convenient if you wanted to get rich quick by challengine a will. When rich old Lord Pompous dies, and his will leaves his estate of Blackacres to his son, you show up with a forged will claiming that Lord Pompous had a fling with your mother, and you are Lord Pompous' illegitimate child. And to prove, you show a will signed by Lord Pompous with his customary "X" granting half of Blackacres to you, and the other half to his know son.

Since few people could read or write at the time, it was customary for the wealthy to employ the services of a "notary public" who could read and write and would transcribe a person's intentions to paper and vouch for the credibility of that paper. The problem is that notary publics could be bribed, and so you could often have a half a dozen different wills popping up, each as legitimate on their surface as the others.

The doctrine of Adverse Possession arose as a means of dealing with the problem of widespread forgery. It allowed judges to recognize the claims of people well known in the community for generations to succeed against the apparantly superior claims of total strangers who showed up after a death claiming to be illegitimate children of the deceased.

In Britain and France, up until about 1850, the rights to property were recorded in something called a "land registry" where every time a property was sold or divided amongst heirs or whatever, the bill of sale or will would be registered. So, if you wanted to buy a piece of land, you had to search through all of the bills of sales and wills registered in that land registry for, in some cases, centuries, to prove that the seller of the land really owns what they're wanting to sell. Since that time, however, there have been laws that require that the seller only prove his claim of ownership over the past 40 years.

The problem with that system is that the bills of sale and wills would be damaged by continuous handling, and at a time before photocopiers, often only the owner and the land registry would have originals of the bill of sale or will by which the owner could defend his claim to his land. And, in a fire like the London fire of 1666, which 2/3 of the city went up in flames, then not only did the land registry go up in flames, your copy did too. So, not only did you lose your house because insurance didn't exist back then, you also lost the ability to prove you owned the land you used to live on.

So, in the mid-1850's an Australian by the name of Torres applied the same system that Australia used to register the ownership of ships to land sales and the inheritances of estates. In Torres' system, any time a buyer and a seller agree on the sale of a piece of land, the buyer applies to the "Land Titles Office" to register the sale. The Land Titles Office, which is part of the government, reviews the ownership history of the land to ensure the seller owns it and that there are no leans or other encumbrances on that land. If there aren't any, the land titles office then charges the buyer a fee to register his title to the land. And, with the adoption of that system throughout most of Canada and the USA, most jurisdictions have passed legislation that provides that the title of the registered owner CANNOT be extinguished by adverse possession.

This is a much better system because if the owner of a parcel of land is ever sued, a judge can give the successful plaintiff the right to register a lien against that land at the land titles office. So, if the owner every tries to sell it, the lien holder is payed first out of the sale of the land. Similarily, if a landowner ever goes bankrupt, then his creditors can force the sale at auction of any land he owns to recover their losses. And, since the civil servants working in the land titles office would have no idea if a squatter had been living on that land for the past 25 years, the title registered at the land titles office effectively prevents that squatter from claiming that he now owns the land cuz of adverse possession.

So, if you build your fence where the old fence was, you do so at your own risk. That's cuz if your state or province uses the Land Titles system as opposed to the older Land Registry system, Adverse Possession doesn't apply, and if and when the mistake is discovered, your new neighbors can have you tear down the part of your fence that's on their land.

So, if you live in the older populated parts of US or Canada, like Boston, Philadelphia, New York, Quebec City or Halifax, there's a good chance your city or province still uses the old land registry system. But, if it's the newer land titles system, your title to the land is guaranteed by the city, state or province, and cannot be extinguished by Adverse Possession.

PS: I'm no lawyer, but I read a text called: The Law and Business Administration in Canada Third Edition By J. E. Smythe and D. A. Soberman Published by Prentice Hall of Canada every bit of 25 years ago when I first bought my apartment block, and I still have that book and re-read the part on Adverse Possession and how recording ownership of land has changed over the centuries.

Reply to
nestork

On Sat, 31 Aug 2013 19:05:09 -0700, Jon Danniken wrote in Re Adverse Possession:

Option B

Reply to
CRNG

This has been a big issue for me in the last few years, as I have probably posted, I have a neighbor who seems to sincerely believe that he owns about 200 or 300 square feet of my land. (The piece is triangular and I haven't measured it. Not too important, because I'm not sure what he thinks he owns anyhow.)

With option A, you would just never tell them about the issue, right? Is that what you mean?

I don't think you solidify your ownership until after a court hearing where they have the opportunity to be present. Now if nothing changes, your case just gets stronger I guess, because even more time has passed, But... How did you find out about this? Might each of them not find out the same way? Or when the property is sold, or an addition built on a house and side setback rules come into play, maybe a survey will be done by one of them.

It's not enough to have the statute in front of you. You need to read all the case law related to your situation. I don't know how to do that on-line, though googling for "case law Oregon" might help, or just googling your statute number.

But the quickest simplest way might be to go to a law library. Any law schools nearby? Any public law schools nearby? (When I lived in NY, all the law schools were privately owned, Columbia, NYU, and a couple others. They didn't even readily grant students from other law schools permission to use their library, let alone derelicts who post on alt.home.repair. But maybe they're nicer in Oregon. It's the opposite in Baltimore, where I think there are two law schools and both are public.)

But your best resource might be the county courthouse, which probably has a law library. The one here, in Towson, was intimidating to me. When I first got to Balt, I thought it was just for lawyers, but it would be really hard to rationalize that, since it's taxpayer funded. And indeed, it's for anyone. (I never thought to look in the Brooklyn or NYC courthouse for a law library, but now I'm sure there is one, and it's probably public.)

And there you will find a set of Oregon statute books, maybe 10 or 20 volumes, and following each statute will be a list of cases, at least cases heard by Oregon appellate courts, that relate to the statute. They will further explain how the words of the statute have been interpreted by the courts. (No matter how carefully one writes a statute, there is always a line of ambiguity, a border line.)

And DON'T FORGET to look in the pocket part. Because the set is too expensive to buy a new one every year, instead every year they print a supplement, whose cover slides into a slot in the book's back cover. It has the most recent decisions, which may even contradict what you just read. In a little state like Maryland, the pocket part can be really small and most statutes are unaffected. In a big state like NY or California, it's the opposite.

Make copies of anything relevant.

Especially if the Oregon statute book does't have everything I just said it would have (I think all states have the case law, but what do I know), but even if it does, you might also look in the Northwest Reporter, I think it's called for Oregon and nearby states. Published by West Publishing Company.

The librarian will help you but maybe there's a map of the library, which is not as big as a branch public library, with "Reporters" marked on the map. Or you can just walk around until you find the big sets of books. (probably statutes for all 50 states.)

Even though most lawyers have Lexis now, I'm pretty sure all these books are still published for the whole country. I like books better than computer monitors.

Anyhow, you can't understand the statute if there is case law about it that you don't yet know about. If they don't have the books or only a pocket part that is 3 years old, they'll probably have Lexis that you can use.

I think someone in your family is pushing for A. I hate to say it, but probably a woman. They are not as tender as I was led to believe when I was a child, and I rarely hear them talk about honor. (although truth be told, even though I believe strongly in honor** the men who talk about honor the most are more likely to be those I disagree with politically. **For me the most important part of honor is that it is what keeps people acting legally even when they don't believe the laws against stealing etc. come from God, as many people don't.

Ed's advice sounds good.

Reply to
micky

That language comes up in negligence law. Not here, I think.

But anyhow, the neighbors did know that the land was in the possession of the OP. Every time they walked into their yard, they saw the fence.

Do you mean that they have to know they owned it? If that's what you mean, the answer is no.

If you had read the link, you'd see t here was no mention of knowledge on the part of the real owners.

Oregon has a pretty clear statute, compared to the couple other states I know. Not for Oregon but in general the elements of adverse possession can be remembered by the EUNUCH rule.

Exclusive Uninterrupted Notorious Unpermitted Claim of Right Hostile.

Unpermitted doesn't seem to be present here, since the n'bors are clearly permitting it, but at the same time, permission is not mentioned in the Oregon statute anyhow. IMO other clauses come at the issue of permission from the other direction, and the OP doesn't have to worry about this.

Claim of right is mentioned in the statute. Some states have so weakened claim of right that it's hardly a condition anymore. One state says iirc if you're using it, you have a claim of right. Wow! Oregon doesn't define this so clearly in the statute, but it may in case law.

AIUI, adverse possession came up mostly with tracts of uninhabited, untilled land, where it was not clear that either party owned it, That's why open and notorious were issues. If both of them just ignored the land, the new one had insufficient basis for adverse possession.

This is where taxes come in too. In my case and the OP's case, all five of us are paying the tax bill we receive. The question is where the boundary is. But a separate parcel of land no one resides on or farms or has a business on, its boundaries are not likely to be an issue, but who the person is paying the taxes on it is important.

Reply to
micky

After all my stuff about law libraries, I see that the right column partially, and the second footnote more fully lists cases related to the statute.

As is the case with most webpages, there is no last update date, and a lawyer who assumed that all the relevant cases were listed would be guilty of malpractice if he turned out to be wrong. But in your situation maybe you only need to have seen this list.

This is interesting, " Requirement that person claiming adverse possession had objectively reasonable belief concerning ownership does not alter doctrine established under common law allowing proof of hostile possession based on pure mistake. Clark v. Ranchero Acres Water Co., 198 Or App 73, 108 P3d 31 (2005)"

Isnt' it charming how the court doesn't void sections (b)(B) and (C) but afaict, it might as well have by bringing back the common law rule that includes pure mistake, and does't require an objective basis, or reasonableness. IIUC. This helps you, OP, in this case, but more importantly it's a lesson on why case law matters just as much as the words of the statute. .

Did you see this:

SUITS TO QUIET TITLE AND REMOVE CLOUD

formatting link

105.605 Suits to determine adverse claims

It just says "may maintain a suit". Whether a suit or something is required may be a question.

This one is good for me, but not relevant to you, I think "Where testimony of possessor of land, who had lived on land more than

10 years, did not clearly es­tab­lish when he began to assert an adverse claim, no title by adverse pos­ses­sion was es­tab­lished. McCall v. Hyde, 39 Or App 531, 592 P2d 1064 (1979)" It would be a lot better if this were a Maryland case. :-)
Reply to
micky

It will depend upon the laws of the state where the property is located.

Further, don't get too carried away with the term "adverse possession." Your use of anothers' property doesn't need to cause him a problem (which is what you seem to be saying)or harm. Your mere use, ANY use, without permission constitutes that adverse possession since it's HIS property and you are using it for some purpose without permission. All that would need to be done to break your claim under adverse possession would be for him, at some point, to agree to allow you to use the property as you are or for you to ask and be granted that permission.

FWIW, the period of time involved ALSO changes from state to state. 20 yrs is likely a safe bet but in some states it's considerably shorter.

Reply to
Unquestionably Confused

Cut rest.

I'd probably talk to the neighbor, a lawyer, and maybe a surveyor. Maybe the neighbor would sell that chunk of ground for a minimal sum. Failing a formal sale, I'd probably put the fence on the official property line. The next neighbor might be a total jerk about it. Who knows when things will change due to illness, death, or whatever life brings?

Reply to
Dean Hoffman

I don't believe that is correct. Every statue I've seen on this, including the one presented here, doesn't say the owner needs to have been aware of the adverse possession. Only that the one doing the adverse possession do it openly, so any reasonable person could see it. The typical case example is someone moving into an abandoned property and living there for the required period.

It's not stated, but it's a reasonable assumption the real owner of the property has been paying the taxes, otherwise it would have gone up for tax sale. In most of the AP statutes I've seen, for AP to work, it has required that the AP pay the taxes on the property for the required period as well. That seems reasonable, as it shows they are treating the property in question as their own. That might be implied in some of the verbage of the Oregon stature too, ie the "openly" part. It could be argued that by not paying the taxes on the piece in question, you are concealing your claim to it.

There must be case law in Oregon showing what the effect of who pays the taxes is on the case outcome.

As to what to do, one factor missing is what the effect of the few feet is to each property. If it's doesn't make a drastic difference in lot value, usability, access, etc to the OP, I'd opt for getting the new fence where it belongs. It's probably going to avoid a lot of legal fees, at the very least.

Reply to
trader4

I'd have to disagree on that point. Putting up a fence that cuts it off from the neighbor's access and use is indeed adverse.

I don't believe that is correct either. Hostile I believe is taken to mean that you don't have permission, ie you can't have a verbal agreement with the neighbor to park you car on his property, then later to try to claim adverse possession.

I don't think you have a leg

You may be right about that part. There should be case law that's easy to find that clarifies it.

Reply to
trader4

He has a valid point. How do you know they knew? The AP wasn't living in their house, or taking up the whole property. It's very common for fences not to be in the correct place and for neighbors not to know the exact property boundary. The neighbors saw the fence, but that doesn't mean they also knew where the correct property line was.

That is what hostile means, that you don't have permission. It's an essential part of any AP statute.

IMO other clauses come at the

I'd be very interested in the issue of property taxes. Presumably the owner has been paying them on that piece of property all these years. Most of the AP statutes I've read require the AP to be paying the taxes, ie treating the property in question as if the AP actually owned it. I would not be surprised to fing that is implied and interpreted that way under other parts of the statute, eg the "open" part. If you're not paying the taxes, I'd say you're not be open about your possession of said property. There has to be Oregon case law that could answer this.

Exactly and I think that likely means AP isn't going to work.

But a separate parcel of land no one resides on or

IF it's important there, which I agree, then I think it's also likely to be important here. The true owner has been paying the taxes for 10 years. Can someone claim they have been "openly" treating a piece of land as their own when they have not been paying the taxes on it, but the neighbor has and the neighbor also has the title and survey that shows they bought and paid for it? I don't think so.

Reply to
trader4

That makes absolutely no sense - maybe you should go back and read it again.

Think about it...

We're talking about "Parcel X" a strip of land 20' wide and 100' long, for instance. Joe actually owns it per survey and deed. The taxes are charged on a deeded parcel so who gets the tax bill? Joe! Jon's fence mistakenly encroached upon the land of Joe, that same 20'x100' strip. How in the hell is he going to get a bill from the county for that strip if he doesn't own it? Until such time as there is a judicial determination that it is or isn't Jon's land due to adverse possession, the county is going to keep billing Joe and Joe will continue to pay it

- or not.

Doubt that it makes any difference at all in Oregon. It doesn't elsewhere.

Not to mention that it's the RIGHT thing to do. You don't own the land it rightfully belongs to your neighbor. The only improvement made is the fence which is being replaced, right? Just put it where it belongs and consider it a "mulligan" and go forward.

>
Reply to
Unquestionably Confused

B for obvious reasons. The other (not so obvious reason) would be upon selling, you might run into trouble with the survey unless/until you went to court to and got the adverse possession sorted out.

Reply to
Kurt Ullman

And in the case of 'giving permission' it should be done in writing. Avoids andy "he said, she said' in court. It should also be renewed in writing periodically.

Some states it only takes 7 years, IANM Washington is one.

Harry K

Reply to
Harry K

HomeOwnersHub website is not affiliated with any of the manufacturers or service providers discussed here. All logos and trade names are the property of their respective owners.