Adverse Possession and Fraud

You need to meet all of the elements of adverse possession, simply: proof of non-permissive use which is actual, open and notorious, exclusive, adverse, and continuous for the statutory period.

That might work with the tree line. It needs to be open and notorious. It is probably better not to tell the neighbor that the trees are where the property line is (it isn't). You need to take the land adversely to title. In some states you need to pay taxes on the land. It's not a movement of the property line, but it is openly, adversely, and notoriously taking additional property.

One court might agree that all of the elements have been met, and another court might not. Nothing is certain.

Of course I am not an expert. I am only pointing out that the particular plan may or may not work. However, planting trees might be a good plan. Someone can prove how long a tree has been there, and if it is accepted as proof of "actual, open, notorious, and etc"...then it can certainly help prove the time element.

Every state is different with different time requirements, but I think all of them include open, notorious, adverse, and some other ones I can't remember. Taxes are another one, which I never understood. How can you pay taxes on land you don't own? Some states change of ownership nullifies any AP potential claims. Is this the original owner who planted said trees?

I know around here (and in MI) if you simply cheat and mow your neighbors lawn 15' off the line does not qualify. Certainly does not meet the adverse clause, in fact anything but adverse IMO. Is a tree row any different than a mow line?

Making a driveway along a line that cheats a bit, may in fact entitle them to an easement though. Doubtful of title though.

I don't give legal advice to clients with such problems. I merely suggest to seek legal counsel, or simply write the cheater a certified letter giving them "permission" to use that strip for said mowing purposes (and thanks for the trees). Thus eliminating the adverse claim.

Better yet, get it surveyed and build a 4 strand wire fence along the real line. Let the cheaters prove otherwise.

> Can I have my property surveyed in 1977, when I bought the property. Plant trees on the other side of the line and tell the 5 adjoiners that it is my property. Wait until 2014 and then claim adverse possession?
No. Per Chaplin v. Sanders 676 P.2d 431; 100 Wn.2d 853 (1984):

In order to establish a claim of adverse possession, the possession must be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious and (4) hostile and under a claim of right made in good faith.

This was cited in Lily v. Lynch, 945 P.2d 727; 88 Wash.App. 306 (1997). These 2 cases are often cited in Washington AP cases.

If you had your property surveyed, that would destroy any chance you had of claiming to some other line in good faith.

> Better yet, get it surveyed and build a 4 strand wire fence along the real line. Let the cheaters prove otherwise.

That's it. if your the neighbor that has title to the land, kick off the adverse possessor, build your fence, and lay claim to what is yours. That stops the clock, I would think. Another tactic I have heard of is to give them permission to use your land for the time being (in writing). That makes it not adverse to the title, but permissive instead. The person trying to claim adverse possession has to meet all of the elements continuously for the full time required, I believe.

Consider what you are saying, you just had the property surveyed.

When monuments are in place and the boundary line location is known, there are no grounds for an adverse possession claim.

The elements of Fraud are very hard to prove. It almost takes participation by the accused to help prove it.

"It's tricky"

B-)

Around here if someone is attempting AP a simple sign permitting the use of the property or a no trespass will suffice to halt AP.

Acquiescence is where things start to get sticky. If you know someone was there and did nothing to stop them, then you just gave up your property. Once the time limits and other requirements were met. You have to defend your property. That is an unwritten code of law.

Your client should have consulted an attorney long ago. The laws in your locale are probably as fluid as they are here.

> ...Another tactic I have heard of is to give them permission to use your land for the time being (in writing). That makes it not adverse to the title, but permissive instead. The person trying to claim adverse possession has to meet all of the elements continuously for the full time required, I believe.

I don't give legal advice to clients with such problems. I merely suggest to seek legal counsel, or simply write the cheater a certified letter giving them "permission" to use that strip for said mowing purposes (and thanks for the trees). Thus eliminating the adverse claim.

Well at least two of us around here think that's a valid work around, but I'm not a lawyer. It not only gets at least one surveyor some work, but may even keep it out of court. First I always try and recommend a property line adjustment if it seems dooable. Sometimes, sometimes not. That will certainly keep it out of court, but perhaps some zoning issues (that I can help them with).

> When monuments are in place and the boundary line location is known, there are no grounds for an adverse possession claim.

I disagree. If the line is unknown, you would have a possible claim of acquiescence...where both parties have accepted an unknown line to be the dividing line between them. Adverse possession is not "moving" a boundary line, but it is laying claim to property that the claimant does not have title to. In a case of adverse possession, both parties might know where the title line is between them, but the person claiming adverse possession is laying claim to land they do not have title to; adverse and hostile to the title.

This is the rub in many courts, that only cheaters and thieves use adverse possession. NC law is confusing as to what constitutes AP and the courts are a crap shoot. I would just advise any client to seek help with a good attorney.

this why many states have the good faith clause. Knowingly fraudulent claims are void if there is a good faith clause

When a boundary is clearly marked and known by all parties, no one can claim to own what they already know they do not own.

In court, the first question asked of the claimant: Did you know where the location of the monuments and boundary were?

Claimant answer: yes.

Case over, no valid claim.

I remember that from so many lectures and seminars.

There must be the presumption that "no other location is known" for the claim to be made.

While that would seem to be true to many reading the case (Chaplin), it may not be. The law has too many twists and turns and people simply must have the court system to sort this stuff out.

See ITT Rayonier, Inc., respondent v. Arthur & Jane Bell, Petitioners. Supreme Court of Washington, En Banc, 1989. 112 Wash.2d 754.

Wherein they uphold Chaplin but explain that hostility/claim of right will be determined solely on how the claimant treats the property, not on their subjective belief of who owns it. Therefore, good faith is no longer an element of adverse possession. In other words, it seems Chaplin actually did away with the good faith claim requirement that had been in place in Washington for 100 years or so.

Of course, there may have been a statutory change since then, along with all kinds of interpretations of those changes.

Eh?

"That is an unwritten code of law."

Eh?