Adverse Possession

True, but any lawyer would tell the real owner to "put it in writing and renew it periodically" otherwise you wind up in court on a "he said, she said" basis.

Harry K

Reply to
Harry K
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Reply to
Harry K

Jon:

Here's a web site for the Court of Appeals for the State of New York. On this site they make all of that court's decisions available to the Public:

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On the right hand side there's a link called "Advanced Decision Search". Click on that link, and when you get to the Search Court of Appeals Deciions dialogue box, leave the whole thing blank and go right to the bottom and type in Adverse Possession where it says "Search Full Text" and then select "Exact Match" in the drop down list immediately below. Then click on the Find button.

There have been three cases concerning Adverse Possession in the State of New York since 2006, and one of them involves two individuals, neither of which was aware of where their true property boundary was. Read:

'Walling v Przybylo (2006 NY Slip Op 04747)'

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When you find court case citations, such as this:

The [*4]Appellate{**7 NY3d at 232} Division determined: "In the absence of an overt acknowledgment, our courts have recognized since Humbert v Trinity Church [24 Wend 587 (1840)], that an adverse possessor's claim of right or ownership will not be defeated by mere knowledge that another holds legal title" (24 AD3d 1, 4 [3d Dept 2005] [citation omitted]).

Humbert v Trinity Church is a court case that is reported in a set of court case transcripts called "Wend" (presumably short for "Wendell") in book # 24 and starting on page 587.

If you simply take that citation down to the law library at your local university, the librarians there will give you Wend 24 and you can photocopy the transcript of that case.

Similarily, your city will have a library typically located in the same building as court cases are heard (so judges and lawyers have easy access to the transcripts of previous cases with similar facts) where you can look up and photocopy that case yourself. If you print off the case cited above (Walling vs Prysbylo), any of the librarians in that library will be able to help you understand what certain words and phrases mean.

The librarians of those law libraries will also have access to the decisions of other courts, but typically there's a small fee for getting them to search for case law concerning whatever topic you're interested in, and for the printing or photocopying they do for you.

SEE ALSO:

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Reply to
nestork

In the case in question the party seeking to possibly make use of adverse possession is not listed as the owner. The present owner of the property, who presumably has a title and deed showing they own the property next door is listed as the owner and has been paying the taxes. The fact that a fence is in the wrong place doesn't change that.

Reply to
trader4

Who exactly are you referring to? The fact that the person here trying to claim adverse possession is *not* getting a tax bill and *not* paying the taxes is precisely the point. I'll say it one more time. In some states, part of the AP law specifically includes that to make such a claim, the person must be paying the property taxes on the property he seeks via AP, just as if he owned the property. That seems entirely reasonable to me. If you own your own lot, you pay taxes on it. To claim that you own part of the neighbor next door's lot when the neighbor has been paying taxes on it, not you, seems unreasonable to me. And apparently to some states too. If you think you own it, then why aren't you paying taxes on it?

Let's say there is a vacant house on a lot. The owner walks away from it. A squatter occupies the house and starts paying the property taxes. After the required number of years, he can claim it via AP. Not saying all states work that way, but some do. And I'd be curious to see the case law regarding the issue of tax payments and how courts have treated it in other states.

Also, some states have de minimus exclusions, specifically covering fences placed a few feet off the correct boundary, and similar common occurances, where you can't claim AP.

Reply to
trader4

On Sunday, September 1, 2013 7:47:10 PM UTC-4, micky wrote:

Nonsense. The whole concept of if it was permitted use is in relation to it being hostile or not. It's not hostile possession if the rightful owner *permitted* it. If the owner gave permission, then it's not hostile and you have no claim of AP.

They are linked together, the concept is the same. How some statutes list them doesn't matter. What you're arguing makes no sense. It's backwards. We have a guy trying to make an adverse possession claim, call him Joe, against property owner B. You're saying that if property owner B doesn't give permission to Joe, that because he sees Joe use his property and does nothing, that he has then permitted Joe to use it. Well, then AP would not apply and Joe has not claim, because the use was permitted.

The whole concept of permitted or not is that if property owner B gives permission, then Joe has no AP claim period. An example would be property owner B agrees to allow Joe to park his truck on his property. Then he has given permission, it's permitted, and Joe has no AP claim.

Wrong.

If he sees

Wrong. Because if the use is permitted, goodbye adverse possession. It cannot be permitted and hostile. If the neighbor sees or could have seen what's going on, that's part of the open and notorious part and has nothing to do with permission.

Or

That's reassuing....

Here is a differing opinion:

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e-owners-46934.html

?Give written permission to someone to use your land, and get their writt en acknowledgement. For example, you could give someone permission to park on your land, use a shortcut across your property, or to garden or grow cro ps. This can not only defeat adverse possession claims, but also a claim to an easement (use permit) across your property.

I don't know which position is right. Maybe you can do it unilateraly. But I do know that letting your kid go out and play and an agreement or license are two very different things.

And here's another reference on AP that says to get an actual agreement:

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See page 6.

"One effective way to thwart a possible claim is by giving permission to us e your land. If Bill is out planting a garden in your backyard, treating it as his own land , step over and say "Hello, you are on my property by a few feet, but that's okay." You don 't have to throw him off your property; simply claim it. Then put the permission in wr iting and obtain an acknowledgment from Bill. The chain has been broken. He can tend that garden for forty years and still never acquire a legal claim to your property if h e has your permission. An example of written permission is shown below. Agreement Granting Permission to Use Property I, James Brown, owner of the property located at 123 Maple Terrace, Newark, N.J. give my permission to Bill Warner to plant and tend a garden located on a five-f oot strip of my property bordering the east side of the property line. I reserve the rig ht to revoke this permission at any time. ___________________________ __________ James Brown date I, Bill Warner, acknowledge that my use of this strip of land belonging to James Brown is by permission only, and that the permission may be revoked at any time. ___________________________ __________ Bill Warner date This type of agreement can be used to grant permission for parking, using a shortcut across property or even growing crops. It not only can defeat adverse posse ssion claims, but also a claim to an easement across your property (See "Easements" below ). When you use such a written permission, be absolutely sure that the portion of your land being used is described in enough detail so that it is easily identifiable."

I'd also add a good section relieving you of any responsibility for any liability for injuries, damages, etc the person using your property may incur. Let's say you give the neighbor your "unilateral license" to screw around with those bushes on your property. He hires an uninsured Mexican, who trips, cuts off his hand and then sues YOU.

Reply to
trader4

While such wording wouldn't hurt, I doubt you'd ever need it.

There is also law concerning the duty people have when doing each other "favours".

For example, if I ask to borrow your car to drive my date to the Prom, I have a much higher duty to look after your car to make sure no damage is done to it than if the situation were reversed.

If you came to me and asked me to drive your car for a few days until they finished paving the street in front of your house where you normally park, then the benefit of the favour is to you. In that case, I have a much lower responsibility to ensure that no damage is done to the car while it's in my possession.

It's the same thing with allowing someone to grow something on your land. If you allow them to grow something on your land, then the benefit of that favour is to them. They have a much higher responsibility to take care of your land (and ensure that no toxic waste is disposed of on it, say) than if, for example, you were sick and asked them to farm your land for you.

So, in a case like the one you cited, no judge would hold you partially responsible if you allowed your neighbor onto your land to grow flowers, or whatever, and their hired help injured themselves while working on your land. The benefit of the favour is to your neighbor, and it's his responsibility that no harm comes to you as a result of you're doing him that favour.

So far as I know, the only exception occurs when you're aware of a hazard on your land that the Neighbor isn't aware of, such as a tree root or rock sticking up out of the ground that someone could trip on or a low hanging branch from a tree that someone could, conceivably hit their head or poke their eye out.

Reply to
nestork

How about a citation? Show us the statute in one of those states that requires it (payment of taxes).

You gave an example of a common law "test" as it were. Common law may be the foundation of our laws but they have evolved over time and statutes and case law are all that matter when you get down to it.

Once again if you have adjacent property owners who share a common, LEGAL boundary line between their two properties and for whatever reason one neighbor places a fence that encroaches upon the others' property the land so "taken" by the encroaching party IS subject to claim by adverse possession and there's no way that that party is going to be paying taxes on the land. Assume both are deeded as exactly .5 acres. Each pays taxes on that .5 acres however the guy who put his fence 5' over on the others' land should be (under your theory)paying on .5023 acres and the wronged party (the actual owner of the land)is paying on .4077 acres. I guarantee you that they are not.

Granted the laws are different in different states. In IL taxes does not enter into the equation other than to prove, perhaps, that the rightful owner has not abandoned the property. A deed by adverse possession may still be had if the non-owner maintains or uses the land as his own.

Reply to
Unquestionably Confused

My mom has been letting a neighbor graze her pasture ground gratis. I called our attorney to ask what issues that might raise. Almost his first words were about adverse possession. Then he raised the liability issue. Questions about who had to maintain fencing, etc. were next. This is in Nebraska. We have fencing laws and all that sort of stuff in place.

Reply to
Dean Hoffman

Paying taxes on disputed land is more prevalent than this group imagines. Saw many cases in my 50 years as professional land surveyor.

Owner "A" has 200 foot wide property which in reality is only 199 feet. He sells the west 100 feet to owner "B". Later he sells the east 100 feet to owner "C". Keep in mind that "B" has senior rights (he came first), parce l "C" is junior. Owner "A" is completely out of the picture.

Dispute arises. Fence in wrong place. Note that both parties have been pa ying taxes on the one foot strip in question. The County Assessor has asse ssed both parcels as having 100 foot of width.

Ivan Vegvary

Reply to
Ivan Vegvary

I would think the person doing the survey would be lible. He should have said that the fellow only had 99 feet left to sell after he sold the first

100 feet.
Reply to
Ralph Mowery

This is the west coast. (S.F. Bay Area region) Rarely do people get surveys upon purchase. Not the custom here and not required by title companies on residential properties since all they insure is 'chain of title' and not location. When a survey is requested, yes, the problem will show up. The duty of the surveyor is simply to disclose, no liability involved.

Ivan Vegvary

Reply to
Ivan Vegvary

I can see that on buying all of a piece of land that has a deed, but when split up I would think a survey might be needed as new boundies are being generated.

When I bought a house with about 3 acers of land a few years ago,I did not get a survey either . I did not think I needed one as I was buying all of one plot of land so the deeded area would not change. Also one side was a road, one side is a creek and only one side is next to another piece of land and I could see the old posts from some previous survey. The property is shaped similar to a triangle so only 3 sides. This is in North Carolina for whatever differance that may make.

I know of some property that the land marks on the deed are not any good at all. One was a refferance to a center pole of a barn. That barn burnt down

50 years ago and a new barn was built many feet from the origional.

Reply to
Ralph Mowery

If they don't find/disclose it or if they are the doing the original subdivision, they certainly are liable. It comes under the heading of "errors and omissions".

Reply to
krw

schools/school boards pay property tax in Washington?

Reply to
Malcom "Mal" Reynolds

or the owner can take the property by saying his taxes have been paid (by him?)

Reply to
Malcom "Mal" Reynolds

YOu keep claimin "in some states tax payment is needed" but there is a distinct lack on your part to give a cite.

One major problem with your "belief" is that a squatter has no way of beginning to pay the taxes. The only way to start getting a tax bill is to go to the county office handling taxes and PROVE THAT YOU OWN THE PROPERTY to begin with.

So tell us how a squatter can pay the taxes.

My case where I got a lot by paying taxes was a lump sum payment for 7 years of back taxes and 7 years of mowing/spraying weeds on the lot.

Harry K

Reply to
Harry K

And I'll say it again for at least the third time: Provide a cite for that.

So tell us just how that squatter managed to start paying the taxes. He has to prove he owns the property before the tax people start sending him the bill.

And I'd like to see your cite for at least one state that has that restriction.

True, most states IIANM require a fence to be erected a few inches on one's side of the line.

Harry K

Reply to
Harry K

Only "some states"? So are you agreeing that in some other states, the law is the way Wes and I and, I think, Unquestion, have said it is?

Because you think you are. You think the bill you get includes the land you think you own. Who wouldn't think that?

You choose examples that fit your conception of the law and where the results will coincide with your conception of the law. No one is saying it doesn't work out like you expect some of the time.

But you don't consider other examples that don't fiti your conception of the law.

And then there are the other states with no such clause.

Where that is the case, AP won't apply, but if the fence is further out of place than "a few feet", or whatever the statute says, I guess AP is again a possibility.

This makes sense. If the fence is only an inch, or a small number of feet, out of place, the original owner will come out of his house every day and look at the fence and he won't be able to tell that it's not where it's supposed to be. That's why *some* states have the exclusion.

Reply to
micky

It was a special deal put together by a coalition of the adjacent landowner (Last president of the school board), his lawyer and help from the county tax office. The lot lay across a section line, half on my side, half on h is. The title was a total mess as it had been donated by two different fami lies way back when, heirs proliferated, etc, etc. Tax man wanted the title claeard up, both me and the adjacent landowner wanted the same so that weed infested patch and awkward corner for him could be eliminated. I was a ba be in the woods and just did as they asked. Was it true back taxes? Dunno but Washington law allows AP after only 7 years "if the claimant had paid taxes". Takes 10 years without that proviso.

Harry K

Reply to
Harry K

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