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Tammy Ellis    Posted 06-22-2004 at 23:39:21       [Reply]  [Send Email]
We purchased our home and (supposed to be) 5 acres from an honest man a couple years ago who was ailing from his battle with lung cancer. He'd had a friendly relationship with his adjacent property owner and, after realizing his fence line was off, agreed to let the nieghbor graze cattle up to the fence if he would like. Nobody moved the fence. The neighbor passed away and gave the property to his daughter and son in law - who attempted to say it was theirs. Our previous owner and now we are fighting with these people. Now, they are sueing us and claiming adverse posession. Please help - any stories or options or info. greatly appreciated!!!

Jimbob    Posted 06-23-2004 at 16:27:27       [Reply]  [No Email]
A non-contested fence will hold up after 7-years in most cases as a new property line in MI. However, there may limitations to how much land is being contested.

rhudson    Posted 06-23-2004 at 11:54:10       [Reply]  [Send Email]
Not only will it stand up in court, but you may be the one that has to disprove limits to get your land back. in Virginia if you put a cow against a fence for 15 years, the land is yours. get a lawyer NOW! i've written many times on this site about adverse posession. i've have had to deal with three adverse posession claims on my property over the past ten years.

screaminghollow    Posted 06-23-2004 at 08:11:52       [Reply]  [No Email]
RUN don't walk to a lawyer with experience in such things. The Statute for adverse possession is as short as seven years in some states. (here in PA it is 21 yrs, but for a minor technical exception) It comes down to a matter of proof, ie evidence, Truth has little to do with evidence. Your or your lawyer need to immediately get a deposition of the former owner of your property to testify about his "agreement" with the former adjacent. If the guy dies, your proof goes out the window. The PA Supreme Court has said that adverse possession is a "legal" way to steal property. In rural areas proof of a fence is almost always required. Then they have to prove open and hostile possession. Meaning they kept you off your own property. If so much as a letter was sent in the past, or a lease agreement signed, the adverse possession fails.
When you went to settlement to purchase your property, a lawyer should have told you to get something signed about the use of the property. The adjacent owner coming over and giving you a few steaks or eggs for use of the property is pretty fair rebuttal evidence.
Lastly, your mortgage company should have insisted on something, to protect their interest in that piece of ground.
If the adverse possession goes through, the fella that sold you the property could be on the hook for breach of title, or creating an encumbrance on the property by his inaction.
The fella that sold you the property should be warned that he may be liable to you. It will give him some added incentive to remember things your way.
In some states, payment of taxes is necessary and in others there need be some "color of title", ie some basis to claim the property by a deed, lease or other legal claim to the piece of property.
Here in PA, acquiesence in a fence on your property can create a right to trespass by estoppel. Such a trespass can be in perpetuity. Leaving the owner of the property to pay the taxes and the one claiming the right to trespass the use of the property. (How that could possibly be equitable/justice is beyond me)
As I said at the beginning, you need a lawyer who has some knowledge in this field. Most lawyers don't encounter this and are familiar only with what they remember from law school. And, the law in Tx may be very different from what they learned. The local rules of evidence may also play a big part. If the previous adjacent owner died, his heirs would generally be prevented by the hearsay rule from testifying about what he said concerning the boundary. However, what the dead guy said may come under an exception to the hearsay law in Tx, for instance proof of reputation about the property corners and monuments. I recently beat an adverse possession claim because the person claiming, for over twenty one years, was also the person who cut off and sold the piece of ground claimed. There is a warranty in the deed which cut off the property that he, his heirs and assigns would guarantee and forever defend title to the purchasers and their successors, so he was estopped from claiming the property. (even though he had fenced it and kept others off the property he claimed for almost thirty years) My point is that there are a number of ways to attack/defend against an adverse possession claim. Most lawyers just don't know this subject that well, even real estate lawyers. (I was waiting for a case to be called a few months ago, and the hearing ahead of me was about a developer who started building a house on the wrong lot. The lawyers were arguing back and forth about unjust enrichment and estoppel. There was an old case, which none of them knew about which says that if a trespasser builds any fixture on land without permission, it becomes the property of the landowner. On the theory that a trespasser should never profit by his act. None of the four lawyers in the hearing had heard of the case. Titus vs Poland Coal Co. a PA case from the 1920's. As it turned out the farmer whose field the house was built on, ended up owning the half done house and winning damages for the cost of removing it and replanting corn. It never occurred to the attorney's that there might be some law on that very issue and they didn't check.

In your case, I'd suggest calling the state Bar assn and find out the name of the lawyer who literally wrote the book in texas on adverse possession and see if it is possible to hire him. Lawyers generally have to take classes to keep up their credentials and in a state like texas, I'm sure there are classes that touch on this subject. You need the lawyer who teaches that class or who wrote the class materials.

I don't know how much property is at stake, but Good Luck!

Texas    Posted 06-23-2004 at 04:08:16       [Reply]  [No Email]
In most states payment of taxes and the survey is the owners guarantee of ownership. Just beacuse someone uses your property doesnt mean they can claim possession. If that were the case renters would become home owners damn fast.

Some states have allowances that you must prove you maintained the property for a number of years (7-10) and the landowner must be absent all that period before you can even attempt to claim adverse possession.

Alias    Posted 06-23-2004 at 03:41:21       [Reply]  [No Email]
A few things come to mind. First, which land owner constructed the fence? Which side of the post is the fence attached?

Now, here's something to consider. If the neighbor built the fence on the property you now own, and if it was never contested, the courts might find that the man you bought from, by his inaction, acquiescesed and therefore would find in favor of the neighbor. Especially if the neighbor maintained the fence. On the other hand, if the person who owned your land constructed the fence, and the wire is on the outside of the post, and he maintained the fence, then it is unlikely that the heirs to the neighbors property could claim adverse possession.

Bear in mind also that verbal agreements between parties are legal. But I do not believe they are transferrable to heirs upon the death of one or both parties to such agreements.

My suggestion to you is to see if there is anyone living in the area that could bear witness to the fact that the neighbor was granted use of the land in question for the sole purpose of grazing his stock. And, seek advice from a local surveyor. But, be prepared to pay. If you do have a survey, notify the new neighbors and ask their financial help in covering the cost. This will go a long way toward showing good faith on your part if it ever goes to court.

hope this will give you something to think on. But, I do not charge nor do I guarantee good results......gfp

Salmoneye    Posted 06-23-2004 at 03:53:21       [Reply]  [No Email]
Dunno what it is like where you are, but here what is on the deed is 'gospel'...Makes no difference where the fence is...

All states are different though...

BOSS    Posted 06-23-2004 at 02:53:05       [Reply]  [No Email]
They can claim it, but it won't stand up in a court. Get a survey and be done with it. Then go tear down the fence.

BOSS    Posted 06-23-2004 at 02:56:16       [Reply]  [No Email]
Ooops, you wanted a story.

My attorney tried to sue for the same thing. His client asked him to take the case, my attorney said he really didn't want to. The client said that he will pay whatever the outcome. They took it to court and the judge made my attorney feel like a dope. He was so embarrassed that he wanted to get out of there as soon as possible.....they lost, and real fast too.

SusieQ    Posted 06-23-2004 at 02:16:22       [Reply]  [No Email]
Call your county surveyor.....get property surveyed......put land markers in cement, buy new it, to settle this dispute.

Pitch    Posted 06-23-2004 at 04:10:36       [Reply]  [No Email]
It is possible that he has a claim. A lot depends on the length of time the situation has been in place. I had a 5 acre lot and there was this little triangular shaped tail that stuck off from it. The guy next door owned the field behind me and over the course of time a creek seprating the two of us changed course. We got along so when he asked me if he could cut across that tail for access to that field I said sure. Fast forward ten years, I sold the lot the buyer knew what he was buying I knew what I was selling the neighbor knew what I was selling. All three of us were happy. Enter the lawyers. Day before closing my attorney said that the buyers bank attorney was making noise about that tail of land. I got a notarized affidavit from the neighbor stating that he was aware that it was mine and that he had no intention of making any claim on that piece. Guess what? Not good enough for the bank. I had to post a $200.00 bond just in case. The only thing the field was used for was for hay so and it was maybe 8 or 10 acres so he only accessed it maybe ten times a year and there were no improvements made to the access point. The buyer felt bad about it and actually gave me half the bond after closing. Moral of the story: Don't ever do anyone a favor cause a lawyer will scxew you for it.

screaminghollow    Posted 06-23-2004 at 08:19:03       [Reply]  [No Email]
actually, the banks attorney was an overcautious jerk, but you should have had some writing to the effect that so long as you owned the property, he had permission to cross your land for ag puposes only. signed by both of you. That would have kept some of the confusion from arising. There's an expression about CYA, that goes especially for real estate agreements and lines, always get it in writing and keep a copy somewhere safe.

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