Given:
100-acre tract of land shaped like rectangle, owned by two people each with undivided interest, 50% each.
They divide the land in half--east half and west half, without a survey, giving each 50 acres, more or less.
Man who owns the west half sells his west half immediately after the partition using the same description used in the partition above.
New owner holds onto the land for about 40 years, and then he decides to get the land surveyed.
Surveyor surveys the land and has no problem delineating the east half and the west half of the original tract, and he sets corners on the divding line.
However, he finds a fence that has existed for at least 60 years that does not run down the dividing line. It starts on the south end of the dividing line almost in perfect position, but by the time it reaches its northern terminus the fence is more than 60 feet too far east.
Question: Will this fence hold as an adverse possession fence? Why or why not?
(Fence was in position at time of the division of the 100-acres.)
30-year adverse possession applies in Louisiana where this occurred.
probably can't satisfy a.p.
possession must be:
open
hostile
notorious
continuous
exclusive
for 20 years in md
not enough there to suggest the above were committed/satisfied
from louisiana law:
RS 41:1328
§1328. Tax title by prescription
A. Any person holding, or claiming immovable property under a deed made by a sheriff, or a tax collector, or other state or parish officer, which has been on record for more than ten years, and is, or purports to be, founded on a forfeiture for taxes theretofore had or made, or conveys or purports to convey an interest or title in such property acquired or pretended to have been acquired by the state, under a tax forfeiture, whether any such forfeiture actually took place or not, shall after the expiration of three years from July 7, 1904 be held and deemed to be the absolute owner of the property described in such deed, provided, they or their authors shall have paid, or do pay all taxes assessed against said property for such period of thirteen years. No court in this state shall thereafter entertain any suit to cancel or in any wise affect the title of any person or corporation claiming by, through or under such deed.
B. The provisions of Sub-section A of this Section shall not apply whenever the original owner of the property was, on July 7, 1904, in the actual physical adverse possession of the property, nor, when such original owner has paid the taxes assessed against such property for any one year within ten years prior to July 7, 1904, or, within three years thereafter, has instituted a proceeding to cancel such tax deed or forfeiture as a cloud upon his title.
Has anyone relied upon the fence as the boundary?
Did the original seller describe it as being to the fence line?
Was the fence mentioned in the original deeds following the split?
Adverse Possession or not is the wrong question.
The correct question is, is the fence the boundary or not?
Moe,
It doesn't have to be adverse here in Louisiana to meet the requirement for adverse possession. It will no doubt get adverse though.
Dan,
Fence was not mentioned in the deed or anywhere. Was not even discussed in the transaction or at any other time I am aware of. The land is timberland. I don't know if cows ran on the land or not, and I don't know if the fence had any use or not.
"Question: Will this fence hold as an adverse possession fence? Why or why not?"
oh, the above was the question i was trying to answer.
i should probably go back to work...
Yep, we Louisianians call it adverse possession although might not be really adverse. Can even be by agreement I think. But gosh do some of them get adverse!!
oops, i didn't read the last line of your post.
The intent of the split will supersede the fence.
but, if someone did rely on the fence subsequently after the split for actual and exclusive use then that might change the game so to speak.
Then I say no, it's just a fence.
I wouldn't think it would meet the requirements.
They divide the land in half--east half and west half, without a survey, giving each 50 acres, more or less.
Seems the division occurred after the construction of a fence no one knew about until a survey was done. The fence does not follow the division line and then creates some confusion. Who knows why the fence was constructed....cattle?
Dave K. is correct. It could be the boundary by one of many Equitable Doctrines such as Acquiescence, Practical location, or Adverse possession, to name some. Each doctrine has it's own criteria that has to be met.
The only way to tell is to to get eyewitness testimony from the prior owners. Are the parties to the survey disagreeing on the meaning of the fence. If there is no personal knowledge of the location of the boundary by the currently owners I would ignore the fence and place the line where it should be by deed.
If there is disagreement whether or not the fence is the boundary than the actual boundary is a matter of law and only can be decided by a court or by agreement.
The mere existence of the fence isn't the important part. What the owners did in the vicinity of that fence is. Is it just a brushy wilderness around the fence or have they been cultivating or running stock right up to the fence? Any discussion between the owners about the fence, and its relationship to the boundary, will be important.
Remember that the burden of proof is on the adverse claimant. Requirements like "open" and "notorious" can reliably be determined by looking, but "hostility" goes to the state of mind of the owners. If the facts you have given us is all the facts there are then an AP claim is going to fail.
Yep, I posted all I know. It just happens to be a fence in the woods in this case based upon evidence I have secured so far. Not to be disagreeable, i am not 100.00% positive this thing would not hold as a boundary fence. I will look more into it and report.
Nope, at least not in Florida. Here you also have to pay taxes on the land adversely possessed in addition to other statutory requirements.
Soon as you start paying taxes the governing authority notifies the parcel’s owner of the claim. I suppose then all hell breaks loose.
Have a great weekend!
> Question: Will this fence hold as an adverse possession fence? Why or why not?
>
> (Fence was in position at time of the division of the 100-acres.)
Is someone making a claim of AP?
Karoly said the real question should be "Is the fence the boundary line"
If I had that question to ponder I would probably ask each party if they could point out what marked the division line between the two parcels. If one says "the fence", go to step 3. If both say "the fence" go to step 4. If one says "I'm not sure" go to step 5, etc etc
Ask the parties involved..
I am sure one party will want to use the fence, and the other one will not want to use it and will claim he never saw it in his life.
When the land was not divided by survey, absolute or even reasonable accuracy of physical evidence of the limits of occupation and control is not necessary, the word 'half' does not mean 'equal area' when existing physical evidence is involved.
Cooley's instructions refer to the understanding of the affected owners with regard to the physical evidence and the intent is to be found in the acts of the original owners.
Existing physical evidence could be binding on any subsequent purchaser who bought without a survey.
There is a presumption that a buyer inspected the premises and had knowledge of the fence or the buyer and the original owner of the other half may have agreed to the position of the fence for their own reasons.
A careful interview of the affected owners is necessary.
Richard Schaut
"Intent" is not a camping term.
Cherchez l'intent of what was thought to be the boundary at the creation of the parcels.
Not an easy thing, but put it so in your report for the lawyers to wrangle over IMVHO
DGG
Doesn't adverse possession take from it the amicable acceptance of an old fence line?
Your claim of ownership in your land is adverse to any claim made by anyone else in the world. Why wouldn't any occupation of any other parcel of land by an owner be adverse to a challenge to thier claim?
Never leave law to the lawyers, that is the best way to get your legal system all screwed up. Check SCOTUS Chief Justice Warren E Berger's 1984 report on the state of the judiciary where he states that the US legal system is 'no longer acceptable for a civilised society'.
Richard Schaut
