do I have a leg to stand on? adverse posession?

[beck4ever]

What is the name of your state (only U.S. law)? Iowa
Ok, background---I am new to this.
Homeowner of current home just 2 1/2 yrs. Rear yard completely fenced in upon purchase, neighbors state over 10 yrs. There was not permit taken out for this fence, so I cannot prove that time frame wihtout getting a hold of the previous owner.
Neighbor "A", no fence,however maintains yard 10+ feet beyond mine 25+ yrs.
Neighbor "B" fenced their yard just before we moved in...equal distance to ours. We didn't think to have to double check lot lines or survey in this situation.
Problem: our yards back to condo assoc.'s back yards (unmaintained for entire ownership time of the land)..shoulder high weeds, little grass, fallen over trees). All of the sudden, they are disputing lot lines. we're on theirs.

Neighbor "B"'s fence addition (3 yrs ago) sparked condo assoc's attention...they now state "it's their land". Review of original lot lines prove that we, as well as both neighbors have been maintaining approx 15 ft of their land.

Neighbor "A" has lived in his home over 25 yrs, always had maintained the yard without issue from the landowner, prior to his building of the condos.

The assoc had a lawyer prepare an "agreement" for us to sign to continue to use "their" land. Basically saying we can continue to maintain it, but can't do anything further...can't build or change anything...yada, yada....AND they can pretty much take it back whenever they want. Hmmmm.

I'd like to know what our rights are and if, I guess, we have any in the matter. My concern is that I can't prove the fence was there any number of years before we moved in, but neighbors state it was...and the fence is old.

My other question is about maintenence of their yard.....they do none. They like the "woodsy feeling" to the back yard. we added value tremendously to the yard by through improvements done by us. If we did no "maintenence" to what we're learning is "their land", we'd have weeds and dead trees and unmowed grass invading what IS rightly our land. Doesn't law state somewhere that you HAVE to maintain your yards??

Thanks for any advice...I need it.

[FlyingRon]

I don't think any of you have an adverse possession case. You certainly don't. The possession needs to be open, notorious, and hostile for longer than the periods of time involved here.

What the condo association is doing now is staving off a future adverse possession suit. Now that they realize you are using the common area as personal use, letting you make permissive use takes nothing from you that you have now but staves off the action to steal their property from them later.

[beck4ever]

Thanks for the reply. I don't want to steal anyone's land, however do have strong feelings towards the issue.
I could be wrong, but I"m not sure how much more actual, open and notorius, exclusive and continuous (as the law states) we could be. It is a fenced yard. Used daily , in the open, clearly for everyone to see. As have the prior owners of the house. It's been used and maintained regularly even before the condos were built on the land. Nothing was said when the land was developed, and I have to believe they knew about our maintaing their land when ground breaking was taking place well over the statutory time frame. The part I'm unsure about it "hostile"....I think the definition means we have to have been in the know regarding the lot lines, and we were not....It was a mistaken representation when the fence was placed years ago. Nothing was said until now. Iowa law statue is 10 years for adverse posession from what I understand.
The other part I need more understanding is "acquiescence". From what I can tell, under this statue, the "hostile" piece does not have to be met....the difference is that the party is not aware of the lot lines while it's being maintained for the 10 year statutory period.....I think we meet this, but I"m sure there's something I'm missing. I'm still learning the laws....quickly. Any further thoughts?

[justalayman]

I would question the fact that the property in question was adversely held to begin with. In a condo association, are you not a member of the association and as such, an owner of all properties held by the association? If so, then you had legal rights to access of the property and therefore, possession could not be adverse.

I don't know if there is any support for such an idea but it would shoot your claim if there is.

the 10 years also has to be under a claim of right or color of title. That is, you had to believe you had legal rights to the property in question or you were mistakenly given title to the property in question.

one more thing; since the fence was not permitted, bringing this to the building department could result in:

a fine for not having a permit
required removal of the fence, at your cost of course

or both.


I cannot find any support or argument against tacking so I do not know it that is applicable or not.


The other thing you need to realize; to take claim of this property at this point since you have been put on notice, you will have to file an action to quiet title. In such an action, it is your responsibility to prove your case. You cannot simply throw out claims and hope they stick.

are you prepared to spend the thousands of dollars it will take to file and argue such a suit?

[VictorD]

I’m not a lawyer, but I was involved in an adverse possession lawsuit (as the defendant), so I had to learn something about it.

I’d say that you need to be pragmatic about this. You certainly have the right to hire an attorney to file a lawsuit against the condo association, claiming adverse possession of some of the land for which they have the legal title and on which they are paying taxes. If that lawsuit were to succeed, then title to the 15 feet in question would be transferred to you. Of course, there’s no guarantee that the lawsuit would succeed, despite all your arguments. It would really depend on the lawyers and the judge.

But there IS a guarantee that the lawsuit would cost you big bucks (think tens of thousands of dollars) and would occupy your life for a substantial amount of time (think at least several years). Do you really want to risk that much time and money just for just a chance to maybe pick up an extra 15 feet in your yard?

It seems to me that the condo association’s lawyers are being very reasonable. They could have decided to just put up a fence along the surveyed property line. [What would you do in that case?] Instead, they are offering you the opportunity to continue using their land as you have been using it in the past, without having to pay the taxes, and without having to hire a lawyer.

To be sure, if you sign their proposed agreement, they could theoretically turn around a week later and tell you to stop trespassing on the 15 feet of land. But do you really think that will happen? They are just trying to protect their property rights. What else would you expect them to do?

[beck4ever]

First, a thank you to the last poster. Much of what you say makes sense. I will try to explain further each point...

I do not belong to the condo association. They are on the neighboring street and our backyards meet...I am a single family home owner.

Next, yes, I am aware of (and need to learn more about) the claim of right or color of title rule. I guess I don't fully understand this one. I (as well as prior owners of the home) have been under the belief that we do own the land in question. It was never a thought that the land might not be ours...after all, it's been fenced in for years. Mind you, the only document I'd ever referred to was the original home listing and disclaimer when we bought the house, describing a fenced in rear yard and "fencing" listed under the miscelaneous category...I never thought to question this.

Really, I could care less about the fence being there. We didn't place it, and are in the process of contacting prior owners to see if we can track down a date to "prove" when the fence was put up. Can I be fined for lack of a permit, when I didn't have it put there?

Also, I realize I don't need the fence there to claim adverse posession, just thought it would help show "open and notorious" use of the land.

what else.....ah, quiet title. This is another term I'm learning about...have it written down next to me...This basically means if we aren't able to solve the dispute on our own, we allow a judge to decide who owns what?

Do you have any knowledge about "Acquiescence"? Also, back to claim of right, color of title....what do I need to have to meet this requirement?

I'm not by nature such a defensive person, but feel so terrible about this, and hate that I'm becoming more and more angry....I'd have never bought our house if it'd been brought to my attention earlier..but who would have I guess. It takes away most of the usable yard for my kids to play. So disappointing and if we end up KNOWINGLY without ownership of the land, we certainly will have trouble if we ever want to sell. Ugh!

[justalayman]

I do not belong to the condo association. They are on the neighboring street and our backyards meet...I am a single family home owner.

then that point is moot.

Next, yes, I am aware of (and need to learn more about) the claim of right or color of title rule. I guess I don't fully understand this one. I (as well as prior owners of the home) have been under the belief that we do own the land in question. It was never a thought that the land might not be ours...after all, it's been fenced in for years. Mind you, the only document I'd ever referred to was the original home listing and disclaimer when we bought the house, describing a fenced in rear yard and "fencing" listed under the miscelaneous category...I never thought to question this

. then, at least on your part, you would have a claim of right as this was what was presented to you as "your property" although that argument often is not successful. Only if the original owner also believed the land to be his for some specific reason and not simply becuase he did not obtain a survey, you may be on your way to ownership of 15 feet.

Can I be fined for lack of a permit, when I didn't have it put there?

yes. In my area, to prevent such fine and permit fees, the building department would allow a removal of the fence to conform with permitted building allowances.

A

lso, I realize I don't need the fence there to claim adverse posession, just thought it would help show "open and notorious" use of the land.

I understand. Yes, it would most definately help you show such. In fact, it nails it down solid.

what else.....ah, quiet title. This is another term I'm learning about...have it written down next to me...This basically means if we aren't able to solve the dispute on our own, we allow a judge to decide who owns what?

Not quite. If you want title to the property and the true owner will not simply roll over and give it to you, your only option is to sue for quiet title. It appears that is in your future if you want to claim title to the land.

Do you have any knowledge about "Acquiescence"? Also, back to claim of right, color of title....what do I need to have to meet this requirement?

acquiescence is simply where a person simply does not argue the possibility that you could actually be encroaching onto their land even if they suspect it so. color of title is where you would actually have title to the land but for some reason, title was defective and as such, you were not the rightful owner. Right of claim is where you had a legitimate reason to believe the land was yours. In your situation, the fact that it was represented to you as "this is your property" is such an argument. As I also stated, the previous owners failure to obtain a survey is a very poor argument for claim of right. That would simply be a mistake.

. So disappointing and if we end up KNOWINGLY without ownership of the land, we certainly will have trouble if we ever want to sell. Ugh!:confused

Unless you have thousands of dollars to spend in this, you might be best served by accepting the condos offer. Your only other alternative is to relinquish the property or be faced with lawsuits and possible trespassing charges.

here is a link to a site that does a decent job of explaining most of the requirements for AP:

[url=http://50674law.com/2009/02/jan-09-ne-farmer/]Dillon Law PC | Jan 09 NE Farmer-Adverse Possession in Iowa[/url]

heed victorD's warning. This is not a quick and cheap fix, even if your prevail.


Was a boundary survey or even a mortgage survey performed when you bought the house? Most lenders require at least a mortgage survey which would have shown the encroachment.

[FlyingRon]

Originally Posted by beck4ever

Next, yes, I am aware of (and need to learn more about) the claim of right or color of title rule. I guess I don't fully understand this one.

Color of title doesn't apply here. This would be the case if you were appear to have been deeded the property but it in fact didn't really belong to the grantor.

I (as well as prior owners of the home) have been under the belief that we do own the land in question. It was never a thought that the land might not be ours...after all, it's been fenced in for years.

Your mistaken beliefs have no legal basis for action.

So disappointing and if we end up KNOWINGLY without ownership of the land, we certainly will have trouble if we ever want to sell. Ugh!

There's no confusion. You don't own the land. You assumed you did but you didn't. Poor due diligence on your part when you purchased the land has no bearing on the present. I think the condo association is being more than gracious. When you sell you have to disclose that you don't own the land but have a revocable permissive use. It's up to the buyer what they want to do, you might offer to the buyer to move the fence line back on to your land if it is a concern to them.

[beck4ever]

Thank you everyone. Definitely have given me more thoughts to chew on. I will still be consulting a lawyer to be sure on the case. I definitely don't have tens of thousands to dollars to spend, but want to be sure we've got all the information possible.
As far as our misbelief about the lot lines not holding any stake--I'm not sure I completely believe (maybe just don't understand) the last poster's reply. The owners of our home and neighboring homes have been misrepresented as this being our land....leading to mistaken beliefs...Mistaken belief in my understanding does have a place under this law, if the time statue was fulfilled.
I'm needing more explanation I guess. I've read other similar cases that have gone before a judge in Iowa that have been justified. Bottom line however is cost and time frame. I don't have years and thousands or dollars, similar to most in my situation I'm sure. I'm definitely not well versed in law, but do have a pretty good head on my shoulders and will not be walked on if there's a way around this. I will exhaust my options...and in the end, may very well be looking at an agreement with them as some of you have suggested. Thanks again for all of your replies and taking time to think through my situation! Any additional thoughts will always be appreciated, as I'm sure the situation won't be quick to fix.

[justalayman]

Originally Posted by FlyingRon

Color of title doesn't apply here. This would be the case if you were appear to have been deeded the property but it in fact didn't really belong to the grantor.

.

No, Ron is correct as to color of title but he is incorrect as to claim of rights.

With a color of title, as I explained, you would actually have been given title to the land in question but that title was defective (not able to deliver title legally). In a claim of rights, you need to be able to reasonably believe the land is actually yours based on facts surrounding the situation but were obviously mistaken. This is often hard to support and is often simply dismissed by "you failed to obtain a boundary survey".

speaking of: you never answered my question about a boundary or mortgage survey. If you had either and either showed the correct line in relation to the fence, any claim of rights blew out the window as you were put on notice, at that time, that your fence encroached on a neighboring lot.

[beck4ever]

How complicating this all gets. A boundry or morgage survey....no we never had gotten one. Actually, this is my second home and that wasn't even suggested at the time of purchase for either. To make myself sound even less educated, I've never heard of this. I appreciate your input---is a boundry/morgage survery different that a basic lot line survey?
Thanks also for the back up on claim of rights. I thought I understood that correctly. You are correct though in that I'm not sure how strong our case is to prove with the little paperwork we do have.

[FlyingRon]

Every mortgage company I've dealt with on acquisition loans (and even on some refis) has asked for a house location plat. It's pretty much the least you can do. That will show the lot lines and salient structures. It would also result in the property being staked typically which should have made the fence line discrepancy pretty obvious.

Some title insurers will want a more specific survey made.

I'd never assume where the property boundaries are, not from tree lines, not from fence lines, not from driveway location (I've had one house where every house on the street had the driveway encroaching on the next lot).

[justalayman]

Originally Posted by beck4ever

How complicating this all gets. A boundry or morgage survey....no we never had gotten one. Actually, this is my second home and that wasn't even suggested at the time of purchase for either. To make myself sound even less educated, I've never heard of this. I appreciate your input---is a boundry/morgage survery different that a basic lot line survey?
Thanks also for the back up on claim of rights. I thought I understood that correctly. You are correct though in that I'm not sure how strong our case is to prove with the little paperwork we do have.

a mortgage survey, at least in my area and state, is generally a line drawing of the property with the buildings and drives and other such landmarks indicated. There is generally an indication of the distance to a lot line on structures or driveways and such.

Stakes are generally not driven due to the lack of accuracy involved.

One thing that must be noted; the legal requirements for the accuracy of a mortgage survey is often much less than for a boundary survey.

A boundary survey is also generally considered to be a stake or line survey as well. Stakes are driven at corners and there are often temp markers to delineate the boundary, especially for an irregular lot.

this is a legally dependable survey that can be used in court as support for your boundaries (a mortgage survey is useless in court due to the inexactness).

there are typically legal requirements for how accurate either type of survey must be.

Another item to note: a survey is the surveyors opinion of where the lot lines are. In the east, we use a metes and bounds system with defined dimensions but there are often landmarks used as a starting or reference point. These landmarks often were destroyed (trees of unique character were often used. Big rocks as well and bodies of water and more specifically a particular characteristic point of the body of water). As time passes, the tree dies, the rock gets moved, the stream carves a new course so the surveyor is charged with attempting to determine, based on what is there as well as surrounding plots of land, to determine exactly where your lot is.

It can be a considerable undertaking.

In the midwest and further west, we use the rectangular survey system where a state was divided into 24 mi/sq and then into smaller and smaller divisions. A lot within such a system is then referenced from some known point in that system and measurements are then taken to locate the lot.

a much simpler method and less prone to mistake but it can still happen.

when there are conflicting surveys, the surveyors are often charged with determining where the lines are, often by compromising one or the other, or both surveys.

Even with a rectangular survey system, when originally put into place, a compass was used. The problem with using a compass is that magnetic north constantly moves. There are annual movements that are somewhat repetitive and there are long term movements that have no true pattern. On top of that, each area also may have a deviation inherent to the area due to some geological construct in the Earth. If you use the compass readings from a survey, you must know the year, as well as the time of year the survey was produced so you can study the magnetic variances and determine what was the magnetic north that was used at that time.

More accurate equipment came with the invention and ability to include finer and finer accuracy of the theodolite and even newer are GPS systems that are very accurate.

Individual pieces of equipment for modern surveying can be in the 10's of thousands of dollars and that is only one part of the complete system that is required.

Surveying is both a science and an art and a good surveyor is generally not some kid that just got out of college. There is a lot to understand to be able to accurately layout a survey and it often comes with experience.

Is that enough info about surveys?

Oh, I didn't even get into an ALTA surveys.

[efflandt]

I guess you would need to research if this bill was actually passed and is law, but it looks like Iowa might no longer recognize adverse possession any more (only a defect in the deed or instrument conveying the property):

[url=http://www.legis.state.ia.us/GA/80GA/Legislation/SF/02200/SF02212/Current.html]SF 2212 ...abolishing the doctrine of adverse possession of real p...[/url]

[justalayman]

I found nothing after 2004 on that bill but reviewing the statutes, I did find this:

564.1 Adverse possession - "use" as evidence.
In all actions hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession thereof for the period of ten years, the use of the same shall not be admitted as evidence that the party claimed the easement as the party's right, but the fact of adverse possession shall be established by evidence distinct from and independent of its use, and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims.

and there was this interesting bit:

560.4 Rights of parties to property.
The owner of the land may thereupon pay to the clerk of the court, for the benefit of the occupying claimant, the appraised value of the improvements and take the property and an execution may issue for the purpose of putting the owner of the land in possession thereof. Should the owner fail to make such payment within such reasonable time as the court may fix, the occupying claimant may pay to the clerk of the court, within such time as the court may fix, for the use of the owner of the land, the value of the property exclusive of the improvements and take and retain the property together with the improvements.

and I did find Iowa's definition of "color of title"

560.2 "Color of title" defined.
Persons of each of the classes hereinafter enumerated shall be deemed to have color of title within the meaning of this chapter, but nothing contained herein shall be construed as giving a tenant color of title against the tenant's landlord:
1. Purchaser at judicial or tax sale. A purchaser in good faith at any judicial or tax sale made by the proper officer, whether said officer had sufficient authority to make said sale or not, unless want of authority in such officer was known to the purchaser at the time of the sale.
2. Occupancy for five years. A person who has alone or together with those under whom the person claims, occupied the premises for a period of five years continuously.
3. Occupancy and improvements. A person whose occupancy of the premises has been for a shorter period than five years, if during such occupancy the occupant or those under whom the person claims have, with the knowledge or consent of the real owner, express or implied, made any valuable improvements thereon.
4. Occupancy and payment of taxes. A person whose occupancy of the premises has been for a shorter period than five years, if such occupant or those under whom the person claims have at any time during such occupancy paid the ordinary county taxes thereon for any one year, and two years have elapsed without a repayment or offer of repayment of the same by the owner thereof, and such occupancy has continued to the time the action is brought by which the recovery of the real estate is obtained.
5. Occupancy under state or federal law or contract. A person who has settled upon any real estate and occupied the same for three years under or by virtue of any law, or contract with the proper officers of the state or of the United States for the purchase thereof and shall have made valuable improvements thereon.

so, without researching any case law and from my interpretation of the statutes only;

564.1 requires the true owner expressly be put on notice. Not sure how you would say "hey, I'm occupying your land so I can claim it by adverse possession" but it would seem to remove and surprises.

So, based on that alone, I would guess that an AP claim would not be successful. Iowa laws on this issue are definitely interesting. I would love to read any current cases if anybody runs across any.

based on the 560.4, it seems you may be able to buy the land though but not real clear on that.



For an accurate interpretation, I would suggest OP speak with an attorney.