Adverse possession question

[slpfx228]

What is the name of your state (only U.S. law)? California

I just had a survey done and it shows that my neighbor's fence is actually about 15 feet on my property. So he took over a out 900 square feet of my property. I told the neighbor in a very polit way that I'd like him to move his fence. He told me that since the fence was there since 1981 he owns the land by adverse possession. A friend of mine mentioned that adverse possession doesn't apply if I have paid my property taxes, which I can easily prove. Is this true? Does my neighbor have a leg to stand on?

 

[justalayman]

It appears that California is currently experiencing a computer issue and I cannot access their codes at the moment. One site I use for quickie answers does state the possessor must also pay the property taxes to allow for a valid claim.

 

[154NH773]

He told me that since the fence was there since 1981 he owns the land by adverse possession.

Only a court can determine that, and he will have to file such a claim. Write him a demand letter (CRR) telling him to move the fence or you will remove it and bill him. See what he's willing to do as far as pay for a costly court case. He'll probably back down. You have nothing to lose by sending him the letter.

 

[slpfx228]

Thanks. I'll send him the letter. But here's my question. If he ignores the letter do I have the right to remove the fence and bill him? I don't want to make empty threats. Could he sue me and win if I do that? I don't want to lose my land and pay for a new fence. I guess I'm asking if he can actually now own my land like he said. That doesn't seem right.

 

[FarmerJ]

Since you had a survey to show it to be your property did the surveyor also find your pins ? If the markings are still there perhaps you want to do a call before you dig to learn if there is any underground utils that are along your lot line and then go to hardware store , buy copper grounding rods , cut into multiple pieces and use small sledge and beat into the ground 2 inches into your lot line sections of copper rod so if needed they can be found via metal detector later. Learn what your city/ county fence set back rules are if any. Speak to a real estate atty about your best options to reduce later legal problems like moving the fence to the lot line and talk to you about the odds of you wining a suit for the cost of moving the fence) see UNTIL the nieghbor puts in effort to prove in court ( spending the money up front to hire a atty which wont be cheap for them )that they have met the guidelines to adverse possess that area Neighbor can scream rant rave , have a hissy fit and I suppose even call the cops claiming your damaging his property if your atty has given you a green light to relocate this fence to be on his land or the lot line if zero set back from lot line is allowed. BTW if he calls the police show them a copy of the survey, Offer to show the locations of your survey pins and insist its a civil matter.

 

[justalayman]

with the situation as it is: you can remove the fence. If the neighbor does nothing, you win. If the neighbor sues you, whatever the courts decide rules.


You can sue him to require him to remove the fence.


I would spend a couple bucks with a local lawyer to review all of the facts of the situation and advise you. Often times a letter from a lawyer will be enough to convince the other party to comply without needing to go further so you might consider having the attorney right such a letter.

 

[drewguy]

Thanks. I'll send him the letter. But here's my question. If he ignores the letter do I have the right to remove the fence and bill him? I don't want to make empty threats. Could he sue me and win if I do that? I don't want to lose my land and pay for a new fence. I guess I'm asking if he can actually now own my land like he said. That doesn't seem right.

Yes, you could bill him for the cost of fence removal if it is on your property and he fails to remove it.

Chances are, however, that you'll have to sue. And if you do, he may claim adverse possession and that you wrongly removed the fence. You *may* be better off eating that expense or at least planning on eating it unless he sues for adverse possession and wrongful destruction of property (or whatever the claim is). Then you could counterclaim for the removal costs. In for a dime in for a dollar.

 

[slpfx228]

So it sounds you all are saying that he does have a case that the land is his, but he would need to sue me to have a judge make it official. And that he could also force me to pay for the fence. Is that what the law says? What about my taxes argument?

 

[154NH773]

I don't think that's what you should get from the answers. The tax issue may very well be in your favor. I think the best advice is from justalayman:

with the situation as it is: you can remove the fence. If the neighbor does nothing, you win. If the neighbor sues you, whatever the courts decide rules.

The biggest question is, what will the courts decide. My experience is that the courts are a crapshoot in many cases. You are better coming to an agreement outside of court, even if you have to bluff at a court case. Court is VERY costly and there is never a certainty of winning, no matter how good you think your chances are.
My advice is to find a GOOD land use lawyer and discuss the matter, but don't let him talk you into litigating because he thinks you have a "great" case. Lawyers become much more pessimistic when they reach a mid-point in a litigation.

 

[slpfx228]

The biggest question is, what will the courts decide.

Yes. Maybe I havent been clear in what information I'm trying to find. That's the question that brought me here. Does anybody know the answer?

 

[justalayman]

there is no definite answer. The courts can be fickle and, not saying you are not being truthful about the situation but any persons perspective is subjective, we do not have the neighbors position on this, in his terms anyway.

It sounds like the neighbor does not have a valid claim. As such, you would have a right to demand the removal of the fence or to remove it, or even have it removed and make a claim for the costs from the neighbor. If the police get called and they believe the neighbor, there is a possibility you might get arrested for damaging the neighbors fence.

It wouldn't be a bad idea to speak with a local lawyer that can review all the facts and research anything not clear. He can then offer you an opinion that would surely be more reliable than what you can get on the internet from a bunch of people that have only your words as evidence of the situation.

 

[BERTY66]

For the Original Poster...

Hello. You may care to refer to my O.P. on this site ("zoning violation a bar to adverse possession" etc) which has a pretty extensive discussion of a very similar issue.

My message re your original question is that the payment of taxes (past and up to the present) does not often figure in the adverse possession question when it comes to the law and the courts. It depends on the state, you need to check your statutes, but here in RI it does not mention non-payment of taxes by the adverse possessor as a bar to their claiming your land, in other words your paying all your taxes over the years is irrelevant to such a claim. Crazy, I know.

This seems to stem from English common law from feudal times, and if you are not vigilant enough to watch your property and who's doing what at your boundary lines, then someone occupying your land, even if taxes are paid by you, for a length of time gives them title. Whew!

Also the LENGTH of time he has to occupy your land in order to claim it varies by state, in some it is 20, 30 or more years, so check this. Finally you can pretty easily deliver a statement and declaration of notice to him that he is occupying your land only with your permission (which can be revoked at any time)...this STOPS the adverse possession clock from running as of the date you have a constable deliver this document to them or their proxy. Any attorney can do this, or you can even do it on your own if you just research adverse possession in your state Law Library for a few hours...

Hope this helps. Berty66

 

[154NH773]

Since the neighbor is not claiming the property by reference to a written document, which would indicate he owned the property, but only by his installation of a fence; it would seem he doesn't meet the criteria in CA for an AP claim because of the tax issue.

§ 325. What constitutes adverse possession under claim of title not written
For the purpose of constituting an adverse possession by a person claiming title, not
founded upon a written instrument, judgment, or decree, land is deemed to have been
possessed and occupied in the following cases only:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established
under the provisions of any section or sections of this code, unless it shall be shown
that the land has been occupied and claimed for the period of five years continuously,
and the party or persons, their predecessors and grantors, have paid all the taxes,
state, county, or municipal, which have been levied and assessed upon such land.

 

[Armed Supporter]

Keep your cool.

I would have my property surveyed and marked properly. I would get a local lawyer to send a demand letter. I would call the nonemergency number of my local police station and ask for assistance or their presents at the deconstruction site if available.
If your neighbor has a hot temper, you might want to protect yourself ahead of time. I would install motion lights, and video surveillance.
I would call my title insurance company and make a claim on the loss, if nothing else prevails.

 

[BERTY66]

Further to adverse possession in cal...

Hello again. Five years as minimum period to "occupy" land sounds very short, here in RI it is ten years which I had been told was the shortest in the US, and other states are at longer time periods. But if that's the law in CA so be it.

Also it still curious to me that CA law requires the adverse possessor (the claimant to the land in other words) to pay your real estate taxes (on his portion of land that he is claiming)... that would never happen I would think. Plus it goes against the British common law precept from which Adverse Possession arose...that even IF you pay your taxes, it is still incumbent on you as land owner to be vigilant and to object in a timely fashion if someone is encroaching on it...it was a way in feudal times I believe, to deal with tracts of land that had been left to go fallow by original owners, while surrounding neighbors could till the land and make productive use of it...thus, adverse possession arose as a remedy to this type situation...

Finally, I don't think title insurance is going to cover any loss you get on this, it is only to fight a defense against challenges to your original right to the land, which is not the issue here. Maybe normal home insurance might cover these losses tho.

Good luck. Ask an attorney. Albert in RI