Adverse Possesion Claim

Around these parts USE is an important factor, ahs the property been used by the "neighbor?"
The lawyers like to use OCEANS,
Occupation
Continuous
Exclusive
Adverse
Notorious
Statutory Length

Of course some states require Intent to possess land of others, and you can't claim by "mistaken" usage.

Attorneys only make money when they have clients. They don't really care if they have a legitimate issue so long as they get paid.

In Texas they also need to be paying the taxes on the land they think is theirs as well.

Did they buy the land from a family member? If they did that would also count towards the adverse possession claim.

Can you get a copy of their survey and see where the boundary was when he brought the land ten years ago?

The AP could have ripened many years ago when the fence was still standing. Title would have passed, even though the apparent possession later ceased.

In the Oregon case of Nooteboom v. Bulson the property was occupied up to a fence line in the 1940's and 1950's. The owners moved off the property in 1958 and by 1995 the fence was barely there in the middle of the woods. But the court ruled that title had passed by 1956, and remained in the adverse possessors hands.

Not your problem . You show the Boundary lines as your required . They can claim what ever they want . People want ice water in he11 but does not mean they will get it.

Unless the court sides with them, the property still belongs to your client. Anyone can claim anything, but only the judge can make it true.

> Did a boundary survey of a 300 acre property about a month ago for a sale.
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> Boundary went better than anticipated, found some old called for monuments and one line has been described as the centerline of a creek for over a hundred years.
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> Neighbor next door also the centerline of said creek for a hundred years.
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> The common line is about 3000 feet.
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> There is a very old wire fence that is on my side of the creek in pretty poor shape, in fact it is not visible but in a few spots.
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> We all know that this fence was built for convenience back in the day, so no big deal right?
>
> Wrong, The day before the closing on this property a letter from the attorney for the neighbor arrived to my clients stating that they own to the fence by adverse possession.

Well, how is the adverse claimant's boundary described in their deed? Centerline of creek? There are two separate questions here. The first is the merits of the claim (which sound feeble if the sole basis for the claim is the existence of an old, ragged fence that won't turn a cow and that the claimant didn't build) and the second is the practical consideration of what defending a lawsuit will cost. Time for the seller to hire a GOOD attorney. Land litigation has become a specialty and there are damn few attorneys who I'd want to handle that case. Slander of title is a cause of action for your client, I'd think.

You can probably assist by abstracting both properties, your client's and adverse claimant's back to common source of title to show the situation as far as record title is concerned.

Congratulations! If this claim for AP is carried forward, you could be doing more work for this client as the case progresses. Keep your files orderly, your boundary analysis logical, and make sure you get paid for your time.

Initially, I see two problems with the claim.

First: The fence was not maintained by the neighbor. Which would have been evidence of claim of possession. Have to have proper evidence to show a judge.

Second: The creek is a source of water that may have been for crop irrigation or cattle hydration. Denying an owner that right by AP likely not go well in court.

It will require a judge to sort this out. As someone said earlier, our job entails showing/recovering/establishing recorded Title lines. Actual Title lines are determined in court.

Nearly 15yrs ago I had a survey that went down that road.

My client was buying the property from a widow who lived in a rest facility.

The adjoining land was owned by the in laws family to the manager of the Title Company.

The manager would not accept my survey and the owner of the Title Company would not get involved.

Basically, the widow had no fight left in her and my client had a time limit to close on the property because he was headed out on a summer tour of fairs and festivals across America.

They just came up with a new line away from the creek in order to transfer the title.

I told the manager that they would never gain title to that piece of land because the widow nor any of her family would never sign it over.

To this day, no action has been taken by that family to get title to the piece of land they are claiming.

The fence was not maintained by the neighbor

I don't know about where you are, but that is huge here. Statutes define what is a "legal" fence, if it isn't up to standards then it's like it doesn't exist legally, something to check for during an adverse claim.

How did the neighbor get wind that a transfer (and survey)was in the works?
Had they not known they probably would not have raised the claim.

They have had codes since 1872 that are pretty clear what and who is responsible for the fence.
Here is an excerpt:
CHAPTER 2. Obligations of Owners [840 - 848] ( Chapter 2 enacted 1872. )
841.
(a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.
(b) (1) Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties and, unless otherwise agreed to by the parties in a written agreement, shall be presumed to be equally responsible for the reasonable costs of construction, maintenance, or necessary replacement of the fence.

Read it all here

I am in no way an expert and the laws are probably different from state to state. It is my understanding from cases that I have researched is that one of the factors has to be that the person claiming the land has to make it 'known' and that is when the process begins. I think this is the "open and notorious" aspect of adverse possession. In other words, the person losing the land had to know that another person had intentions of taking it and they did nothing to stop it.

We can enter different types of issues such as fences don't necessarily make boundaries, but rather keep livestock in/out. Unless each party mutually thought the fence was the boundary. Each case is different. I think an attorney is trying to pass this by for his client without someone putting up an objection. The person possibly losing the land needs to openly declare that they do not, and have not, recognized the fence as the boundary line and do not wish to lose any land because of the location of the fence originally established for convenience sake and not for a boundary.

The following words are from Wikipedia:

Open and notorious use of the property – The disseisor's use of the property must be so visible and apparent that it gives notice to the legal owner that someone may assert claim, and must be of such character that would give notice to a reasonable person. If legal owner has actual knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

:good:
If I'm not mistaken and I am by no means an expert on adverse possession, the issue of adverse possession has to be decided by a court of law as to whether all of the criteria have been satisfied under that particular state's laws. A very difficult and expensive proposition. Without such a court's judgment, the adjoiner can claim whatever they like, but it has no legal merit without that judgment.

There is the theory that title changes at the time that the adverse possession ripens.

> Did they buy the land from a family member? If they did that would also count towards the adverse possession claim.

I am confused. How would buying the land from a family member affect an adverse Possession claim?

Pesky in laws.

1 Widow would not sell to neighbor because they wanted to pay less than half the value of the land.

2 Neighbor's Daughter in law was manager of Title Company

3 Manager of Title Company was using position at Title Company as a leverage in land deals

A few years later this manager was forced into retirement.

IMVHO, she should have been prosecuted into a prison term.