I??m trying to persuade a possible client that sometimes the best solution is to shrug and say, ??Yeah, so??
She owns a minor rental property downtown. The neighbor had his land surveyed by Brand C who neglected to file the mandatory record of survey, folded up shop, and left town. Neither my client nor I have seen the survey drawing, which supposedly shows her wall about a foot onto the neighbor??s lot. The wall has been there at least 30 years. My client is considering hiring me to survey her lot and determine the location of the wall because the neighbor is pressuring her to accept a deed to the land covered by the ??wall encroachment? to straighten this out. I??ve told her there is nothing to straighten out ?? she may have the land by years of adverse possession, changing the property lines will probably trigger a review by the Assessor that will increase her taxes, and it may cause a problem with the neighbor??s minimum building setbacks.
I say do nothing. What are your thoughts?
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I agree, if it isn't broke don't fix it, the cure is worse than the disease.
Have her tell the neighbor that he doesn't have a real survey because it's not recorded as required by law.
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Make it a quit claim deed conveying any property the wall sits on.?ÿ Shouldn't be anything for the assessor to review. Maybe it's over current line, maybe not.
I would be reluctant to render an opinion it is nothing without doing a survey. It may in fact be nothing or she could be missing an easy opportunity to fix an actual problem. Point is it may not be her wall from day one, but she has rights of use despite no ownership. In zero lot line construction sometimes the first to build actually builds an intended common wall 100% on their property to get things started. It is nice to be able to split a wall dead center, but hey, construction is most often a make it work process.
Paul in PA
which supposedly shows her wall about a foot onto the neighbor??s lot.
Is it? ?????ÿ
This could work in many places, but in many it won't. Creating a new line without a survey is an illegal subdivision in some places.
What do you mean there is nothing for the accessor to review? Any new deed that is recorded will be reviewed.
I have a fence that is a foot onto the neighbor, doesn??t bother me either way. They can move it or if not I stay in possession and the neighbor can use the foot on my side for setbacks. Win win for everyone.
At the end of the day, she can still look out her window and see exactly the same thing she's seen every day, for 30 years; before that pesky fly by night surveyor showed up. I agree with; just shrugging your shoulders and saying 'so what'.
Generally, it's the uphill owners responsibility to maintain a retaining wall. If it fails, it's their dirt that will be falling onto the neighbor. A simple solution might be to grant an easement, allowing for this maintenance. The line doesn't change, just the usage.
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In my case the fence is on the deed line until the mid 1950s when the owner then wrote a deed for the adjoining lot. That deed effectively moved the line 1 foot south. Whether they meant to do that is unclear because they never moved the fence and the title company may have assumed 164’ was supposed to be 165’. The TC caught it in 1958 when our lot was sold minus the 1 foot yet the fence never moved. Our lot was subdivided in 1982 using 1 foot south description but new fences built in old location.
Food for thought.?ÿ Nothing mentioned about a new line or a need for exchange of deeds.?ÿ ?ÿ?ÿ
Make it a quit claim deed conveying any property the wall sits on.
How about this? Written permission by each party to occupy any encroachment that may exist, for the duration that the building wall exists. This would not require finding nor changing a property line.
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Personally, I would survey the property, locate the wall and Plat it. If it is over the line, I would then recommend that my client speak with an attorney. It's arguable that if the adjacent lot is sold or transferred to a new owner, the period of acquiescence can start fresh. It is possible that the fact that the wall has been there for 30 years will mean nothing if this happens. Adverse possession means nothing until it goes before a judge. We are only fact finders not lawyers.?ÿ
It's arguable that if the adjacent lot is sold or transferred to a new owner, the period of acquiescence can start fresh
What jurisdiction has that rule? I thought most only required a continuous period of X under any succession of ownership.
Adverse possession ripens when the conditions are fulfilled (open, notorious, continuous, etc.).
A judge doesn't make it legal, it becomes legal by itself.
It's an unwritten right, and may well be an unknown right.
Why would you send them to a lawyer? That is guaranteed to create big bills and ill will.
I don't know of any jurisdiction where adverse possession needs a judge. A judge is only required if one party thinks there is adverse possession, one doesn't, and they refuse to compromise. Adverse possession is defined by the law in your jurisdiction, not by a trial judge.
There are of course exceptions. Outliers where the combination of facts is unique enough that the surveyor/land owners/title companies cant, with confidence, match established law. Save the lawyers for these interesting cases.
In California an agreed boundary would be much more likely than adverse possession. If it is a subjective boundary (a boundary established by the owners without reference to surveys) then some direct evidence of mutual uncertainty and mutual agreement is required to prove it in court. If it is an objective boundary (either it can't be reliably established by survey or was established by a survey long ago) then the uncertainty and agreement may be inferred.
First it is necessary to locate and survey the existing evidence in order to develop at least a theoretical boundary location then the more advanced analysis can be made.
Since she has only been informally notified and the survey is not published she may not have to disclose the alleged issue to buyers.
I agree Bruce. Do nothing until the neighbor can produce the survey map. And then only if your client says to do so.
I wonder why the neighbor's map cannot be recorded by the neighbor??ÿ In my neighborhood, all that is required is an original signature on the map. And if that is not available, our recorded has a category by which they can enter it into the record called miscellaneous maps.?ÿ
I would not advise a client about their tax exposure as I wouldn't want her CPA advising her about the boundary.?ÿ ?ÿ
The continuity of her possession may have been broken and the AP clock may have begun running the other way. I'd say that you should get out there and find out what the true facts are.?ÿ
The easiest way to get a survey of your property done for free is to get your adjoiner convinced they must prove where the line is.
It's all smoke and mirrors until a legitimate survey is produced that has already been completed by a licensed surveyor.
