Adverse Possession

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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:
http://www.nolo.com/legal-encyclopedia/adverse-possession-trespassers-becom 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:
http://www.pdhcenter.com/courses/l122/l122content.pdf
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.
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' snipped-for-privacy@optonline.net[_2_ Wrote: > ;3115609']

> to

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.
--
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On Mon, 2 Sep 2013 02:38:19 -0700 (PDT), " snipped-for-privacy@optonline.net"

I found one webpage that agrees with you, but given the limited reliability of the web, that's not enough to convince me. I'lll look some more but I don't know when.

Yes and no. It's not definitive, but in practice, it's not likely they'd list both, and separately, if they were the same. I'm sure they discussed this when I doing my short stint in law school, and he must have drawn a distinction.

Whether I turn out to be right or not, it made sense. Not everything that makes sense is incorporated into law, and certainly not n all 50 states.

Of course you can find a case, or a thousand hypothetical cases, which match your understanding. I said they function indiependently, so of course in some cases they will coincide. That doesn't prove they must coincide.

Same answer.

Not wrong.

You're answering on the basis that unpermitted and hostile are the same. I havent' agreed to that yet.

As I said, when I'll have time to read more, I don't know. Your opinion gets one vote and that other source that I think agreed with you got one vote, and I get one vote**, so we're about tied by now.
**I"m reminded of Lincoln's cabinet meeting where everyone in the cabinet disagreed with him. They voted. Lincooln said 12 nays, one aye, the ayes have it. LOL I wish I remembered what the issue was.

How is this a different opinion?

An agreement is different because it takes two poeple. A license can be unilateral.
If you give your kid permssion to go out, and he hasn't decided if he will or not, that's unilateral. It's a license. If you say, you can go out until 6, but only if you do your homework from 7 to 9, and he agrees to that, that's an agreement. It's not unilateral.

Well of course someone will say that. I would get an actual agreement if I could. And I'm going to try again to get him to look at the plat with someone next to him who he might listen to who will explain what the plat shows. But it probably won't work. He' either won't do it or it won't change his mind. And even if somehow he does believe me after this, he's still not going to say so in writing.
The only time someone would agree to this in writing is if he faced denial of use if he didn't sign. If the owner said, No, you can't park here and if you do, I'll tow your car away. Or, you can't garden here and if you do, I'll stomp down whatever grows.
All this guy does is get someone else to mow the lawn and trim the bushes. What can I do, glue the bushes back together and glue the grass ends back onto the grass? I'd have to get an injunction, and I'd have to enjoin the HOA too**, and that will cost me a lot if a lawyer does it, and I'm not sure I could succeed if I do it myself, but I would succeed in antagonizing both parties.
**I certainly don't want to enjoin the nice guy who mows the grass sometimes. I like him and he lives 3 houses away and will never claim he owns my land. And he does a good job when he mows. I should get him a present.

It's easy to give advice. But if Bill has his mind made up, he likely won't even acknowledge that he was told it wasn't his property, let alone acknowledge that it isn't. If your next-door neighbor came over to land you owned while you were planiting a garden, and he said he owned it, would you say, "Oh, sorry, I didn't know" and write an acknoledgement of any kind?

Thanks for this. It needs a bit more, according to my lawyer/friend, but it's a good start.

There are a few people (10%?) who would sign this, but my neighbor is not one of them. He truly thinks he owns it (so why would he sign it?) or he knows he doesn't but feels entitled to it for some reason (so why would he sign it?) or he knows he's going to lose eventually but enjoys annoying me (so why would he sign it?) I tend to think that even if he started out lying, by now he really believes he owns it. People tend to believe their own lies after enough time.

One doesn't need an agreemnent to grant permission. I would not pay for this guy's course.

I first read Nestork's reply to this post, because it's a lot shorter and I was tired last night, and when I saw this paragraph from you, I felt my stomach fall into a pit. But later a bunch of thoughts occurred to me.
First, an agreement between me and my neighbor cannot bind a third party who didn't agree to it. So the Mexican can sue me just as easily even if I have this agrement signed by my n'bor. What peoiple normally do is get party C to hold harmless party B (me) and to promise to reimburse me for any amounts paid to a third party.
Now it is a 100 times less likely that my neighbhor will sign. And he shouldn't. We're sharing the land. What if I myself left the dangerous item on the land and it was my fault a gardner or workman gets hurt. Why should C sign something agreeing to remimburse me for what I pay the injured party?**
But thinking that didn't alleveiate my worry. But... a unilateral permission won't make things worse than they already are. My n'bor C already acts like he owns the land and if he had a reason to hire someone to work on it, or walk over it, he would do it now. But there are no hazards. Kids one summer threw bush bed stones into the lawn, but they are long since gone. If I were to see anything else, I'd pick it up too, but I haven't seen anything but a little litter in 20 years.
And if something did happen, my homeowners insurance company would defend me in court,
It's not enough to own land on which someone is hurt. To be liable, I have to have been negligent and my negligence has to be the proximate cause of the person's injury. It's not going to happen.
But I still appreciate your raising this, because maybe it will affect the wording of the license or the letter than I will send with it.
**So the paragraph could say that liability will be based on who is negligent and he will remimburse me if [a court says] he's negligent. That might well help, but as I said, he'll never sign it.
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On Tuesday, September 3, 2013 2:54:08 PM UTC-4, micky wrote:

to

You're just keep repeating the same thing over and over, but you haven't go t a single cite to back it up. You even admitted that you found a referenc e that agreed with what I said about permission. There are plenty more that say the same thing. So, where is yours that agree with what you claim?

You keep re-writing what I say. I did not say unpermitted and hostile are the same thing. I said the use of the property being unpermitted is *part* of what makes it hostile. If it is permitted, then it is not hostile and the person can't make an AP claim.

You're not very good at math, are you?

come-owners-46934.html

eir written acknowledgement. For example, you could give someone permission to park on your land, use a shortcut across your property, or to garden or grow crops. This can not only defeat adverse possession claims, but also a claim to an easement (use permit) across your property.

Good grief! It says to GET THEIR WRITTEN ACKNOWLEDGEMENT. You said the legal newsgroup said you could do the permission unilaterally, which I guess is just mailing a letter, no response required.

Funny thing how everytime I go to install licensed software, it requires I acknowledge ACCEPTANCE of the license before it allows me to install it. Or how about this. Let's say I mail you a license that says you are now authorized to use the Klu Klux Klan clubhouse for parties. I run around saying Micky is licensed to use the KKK clubhouse. Somehow that doesn't seem right.
And in the case of AP, you have another party who claims they own your piece of land, that they are in fact the legal and rightful owner. So, you send them a piece of paper saying " I Micky license you to use that piece of land". That's like you sending it to me, saying you own my house or are the King of Siam. I chuck it in the trash can and ignore it. That sounds exactly like the kind of hostile action that a reasonable person asserting AP would take.

You can try that argument in court if the neighbor makes the AP claim.

You can take pictures and videos of YOU trimming those bushes and mowing that grass too. There goes his claim of "exclusivity" which in the AP laws I've read is required. If you're both using the property, he has no claim.

I wouldn't like an AH that is planting stuff on my property, mowing my grass whether I want it mowed or not, and claiming that I don't own what I know I own.

use your land. If

and, step over and

don't have to

writing and

No, I don't think someone that thinks your land is rightfully his and that believes he owns it and who may file an AP claim is going to sign a permission agreement. That is precisely the point. It's just that I suspect that free legal advice on a newsgroup where they said you can just send him a unilateral license, and that's sufficient, doesn't smell right.

f he has your

rk, N.J. give

e-foot strip of

right to revoke this

to James Brown is

And I'd ask, why would you sending him a piece of paper, that he refuses to acknowledge make a good defense against an AP claim? If he signs it yes. If he pisses all over it, tears it up, and continues doing what he's been doing, because he says the property is his and you're "license" doesn't apply, well that sure sounds exactly like just continuing his hostile possession of your property to me.
or he knows he doesn't but feels entitled to it for some reason

g a shortcut

But you have lots of faith and base your decisions on free legal answers from a newsgroup.

ssession claims,

low). When you

ur land being used

You're absolutely right, he can sue you just as easily. I think his chances of winning will be greatly diminished though if you have a properly written agreement to hold you harmless.
What

If it was my property, he can sign it in return for his enjoyment of continuing to use my property. Or he can choose not to sign it and stay the hell off of my property. Real simple.

I'm not so sure about that either. If he hires a Mexican and sends him over to your property now, the Mexican is trespassing and was sent there by an illegal act of the neighbor that you had nothing to do with. You "license" the neighbor to use your property and a lot has changed.
My n'bor C

Except that AH's that trespass and don't give a damn about your property rights are the first ones to sue and point the finger at you if something bad happens.

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wrote:

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.

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wrote:

That still doesn't necessarily make it adverse or hostile to the real owners interest. The real owner starts with an interest in it, and it was it would appear, his yard. For the neighbor to ALSO be using it as "yard" is not necessarily hostile to the actual owner. The fence might be worth a claim of exclusive use if it truly prevented the real owner from getting to it IF HE WANTED TO but since it's most likely not topped with barbed wire that could also be a questionable claim.

I think hostile is tied in with the adverse part. The two words are intended to convey the notion that the interlopers use prevents, thwarts, or takes over the use of the land buy the real owner in a way that is detrimental to the real owners interests. That such use is actually "hostile", i.e. detrimental, harmful to the what the real owner intended the land to be used for. Think of a sand and gravel pit out in the boondocks. A owns the land but has done nothing with it B comes along and start taking sand and gravel from it. A knows about it be just lets it go on. That's what I would consider hostile use along with open and notorious. Let that go on for 10 years and A might find out the B now owns a gravel pit.

All the owner needs to do is say "Hey, I see you've been mowing my lawn. The darn contractor built the fence in the wrong spot. I was going to have him move it but he said he'd rebate me $1000 bucks if I left it where it is. So I did since I have plenty of space. You can use it until I need to rebuild the fence someday." and things can go like that forever with on adverse possession possible.
But like you said, and as with any of these kinds of situations, you can never be sure what a judge might decide. For all we know there is a ton of case law that covers this that would easily settle this if we had a law library.

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On Sunday, September 1, 2013 9:44:02 PM UTC-7, Ashton Crusher wrote:

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.
<snip>
Harry K
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On 8/31/2013 10:49 PM, Ashton Crusher wrote:

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.
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On Sunday, September 1, 2013 4:54:15 AM UTC-7, Unquestionably Confused wrote:

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
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On Sunday, September 1, 2013 7:59:24 AM UTC-7, Harry K wrote:

ote:

e

g

t

.







ids andy "he said, she said' in court. It should also be renewed in writin g periodically.

Google is your friend. I did a bit of it for Washington:
Period of 10 years adverse possession is required EXCEPT if you somehow man age to pay the taxes on it for 7 years it is enough.
"knew or should have known": couldn't find any phrase like itin the Washin gton law but I also could not find the "legal definition" of AP either.
However a google for: adverse postion "know or should have known" brings up pages of cites where it appears in legal cases of AP.
In the case of the OP where the fence is in the wrong place. Anyone buying the place after the fence was erected would be in the "should have known" position if they did not get a survey when the bought it. Owner when the f ence was erected and did not object would be in the same position. One is required to know what they own if they want to protect against AP.
"But your honor, I did not know it was on my land" won't fly in court.
Harry K
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wrote:

I stand corrected.

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wrote:

I stand corrected. But these cites were not Oregon, I think, so they don't directly affect the OP.
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Jon Danniken:
If I were you, I would go down to your Property Registry or Land Titles Office and ask to speak to one of their lawyers. They'll have many.
Explain your situation without giving any details, and ask whether you now have acquired your neighbor's lands by adverse possession or not.
If so, then I'd go ahead and build the new fence where the old fence was, and just be glad that things have come to rest in your favour.
Land is valuable, and if your neighbors have not missed that part of their land that you've been maintaining up till now, they won't miss it in the future.
--
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Good luck with that. I can't fathom any government person (and ESPECIALLY a governmental atty) who would give you an actionable yes or no answer. There would be too much liability if you acted on their statement and the judge disagreed.

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On Saturday, August 31, 2013 11:49:11 PM UTC-4, Ashton Crusher wrote:

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.
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On 8/31/13 10:49 PM, Ashton Crusher wrote:

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.
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On Sat, 31 Aug 2013 19:05:09 -0700, Jon Danniken

Option B
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On Sat, 31 Aug 2013 19:05:09 -0700, Jon Danniken

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.

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On Sat, 31 Aug 2013 19:05:09 -0700, Jon Danniken

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 http://www.oregonlaws.org/ors/105.605 105.605 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. :-)
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On 8/31/13 9:05 PM, Jon Danniken wrote:

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?
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