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.
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.
Here is a differing opinion:
•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
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
obtain an acknowledgment from Bill. The chain has been broken. He can tend
for forty years and still never acquire a legal claim to your property if h
e has your
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,
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
across property or even growing crops. It not only can defeat adverse posse
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.
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
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
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.
On Mon, 2 Sep 2013 02:38:19 -0700 (PDT), " firstname.lastname@example.org"
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
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
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
How is this a different opinion?
An agreement is different because it takes two poeple. A license can
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
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
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.
On Tuesday, September 3, 2013 2:54:08 PM UTC-4, micky wrote:
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
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?
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
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
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
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.
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.
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.
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
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.
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.
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.
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.
On Sunday, September 1, 2013 7:59:24 AM UTC-7, Harry K wrote:
ids andy "he said, she said' in court. It should also be renewed in writin
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.
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.
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.
America is at that awkward stage. It's too late
to work within the system, but too early to shoot
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.
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.
This is in Nebraska. We have fencing laws and all that sort of stuff
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
Ed's advice sounds good.
After all my stuff about law libraries, I see that the right column
partially, and the second footnote more fully lists cases related to
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
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. :-)
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
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