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zoning violation a bar to adverse poss?

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BERTY66

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

Rhode Island. Neighbor is encroaching on my property by having a hot tub which is over the property line, in obvious violation of 6 ft. set-back zoning requirement for such amenities. He plans to claim adverse possession of the land under hot tub since it has been there for more than statutory ten years required in RI. Does or does not the concept in equity of entering the court with clean hands prevent him from such a claim, since it is via an apparatus that involves violation of zoning law?
 


154NH773

Senior Member
This is a very interesting question, which I'm afraid I can't answer. I do however, have a question that you probably should research and know the answer to, as it may impact your inquiry.

How old is the zoning code setback that is being violated? If the hottub placement predates the zoning code implementation date, then it may be a legal non-conforming use. That may, or may not, make a difference.

If this goes to court, I'd love to hear the outcome.
 

Mass_Shyster

Senior Member
I don't think it would make any sense to have a setback defeat an adverse possession claim. I also could not locate any RI cases where it happened.

Tell your neighbor that if he insists on taking your land through adverse possession that you will notify the zoning board that his hot tub is erected in violation of the setbacks. If he wins the case, he will own the land under the tub, but not the six feet around the tub that is required for a setback. If he drops his claim, you will not object to him leaving the tub where it is until it needs replacement.

That will cost much less than litigating the matter.
 

FarmerJ

Senior Member
If this neighbor agrees to drop it then the best solution is to speak to a real estate atty about drawing up for you a letter you can send via registered return receipt mail that states he has permission to use the current area he is for his hot tub until further notice. This way no matter what happens there is a record of your granting permission which wont really let them off the hook as far as the city goes but it will make it easier later on to revoke permission. (A atty can advise you also what your liability is with this encroachment and how to reduce your liability if the encroachment is with permission that can be revoked) WHy go to that trouble? because some day it could interfere with a buyer wanting to make a offer on the property being encroached on!
 

Hole9yard

Member
it's not his land; yes it did change from 7 to 10 years I think it change about 6 years ago but, which most people miss is, yes he has to take care of it plus pay the taxes on that land for 10 years if he miss a payment on the ninth year it's starts the clock again
 

justalayman

Senior Member
Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.
and as stevef said; even if he wins claim to the land under the tub, he is still in violation of the setback laws and as such, unless grandfathered due to a preexisting rule, would be required to move his tub.

So, what action has he taken to claim title?

and I can assure you I would build a deck right next to the tub, or as close as legally allowed, where all my friends would have our parties.

and to hole9yards; I see nothing that requires the party pay the property taxes to be able to make a valid claim for adverse possession.
 
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154NH773

Senior Member
even if he wins claim to the land under the tub, he is still in violation of the setback laws and as such, unless grandfathered due to a preexisting rule, would be required to move his tub.
What if he claimed AP to the land under the tub, AND ALSO the land making up the required setback? Hmmmm...
 

justalayman

Senior Member
couldn't claim property he is not possessing. He might be able to make some screwy prescriptive easement claim but I wouldn't think that would be successful. Even an PE claim requires actual use of the land in question. I cannot see claiming he used he surrounding area as a means to fulfill the setback requirements as a valid argument.
 

154NH773

Senior Member
I cannot see claiming he used he surrounding area as a means to fulfill the setback requirements as a valid argument.
I agree, but I've seen all kinds of crazy arguments in court.
 

Mass_Shyster

Senior Member
What if he claimed AP to the land under the tub, AND ALSO the land making up the required setback? Hmmmm...
The requirements for adverse possession are Open, Continuous, Exclusive, Adverse, and Notorious use of another's land. (there may be another test).

The neighbor may meet those tests for the land under the tub, but I don't think he can claim exclusive use of the six feet around the tub. If it is fenced, he has a chance, but OP did not mention any fence.
 

BERTY66

Junior Member
zoning violation a bar to adverse possession?

Hello everyone, this the OP. Let me give some more detail. The neighbor claims he has had his hot tub in place for about 15 years, (beyond the AP time requirement in RI), but at least twenty years AFTER the last revision to our Zoning Code which sets out a six ft. setback for hot tubs, pools etc., thus no grandfathering possible for him under that code. Since tub is actually over the stated property line, which we only discovered last year when I had a survey done (neither of us had previously had this done), it is in obvious violation of zoning set-back requirements -- an issue I have been pursuing separately and the East Providenc zoning office is now moving to prosecution phase on this, so it seems patently clear he is in violation on this.

My desire here is to erect a zoning-compliant fence along our border (a straight line 120 ft. long) which they desire to stop, thus his refusal so far to move the tub (which would cause me to have to make a detour in fence construction and positioning). Their atty. is now threatening a claim of AP if I try to erect the fence, asking court to declare instead a true boundary (which would consider and adjust for their AP claim).

My point here is one grounded in equity re "unclean hands", ie, erecting a structure that violates zoning laws, and using this to substantiate their AP claim, and that such a claim would thus be invalid. Note: he does not appear to be claiming BEYOND the actual footprint of the hot-tub, since just its footprint alone will be enough to dissuade me from erecting fence (is their hope).

Question to SteveF: In your research were you 1) simply unable to find any RI cases where a zoning violation was presented as a defense against an AP claim, or 2) that where and when it was used and presented, it has been defeated and nullified (as a method to bar an AP claim)?...

Further ideas? Thanks to everyone.
 

Mass_Shyster

Senior Member
Question to SteveF: In your research were you 1) simply unable to find any RI cases where a zoning violation was presented as a defense against an AP claim,
I was unable to find any argument of a zoning violation in an adverse possession case.


The neighbor is claiming the tub has been there for 15 years.

How long have you lived there?
Did neighbor have permission of the previous owner?
Does neighbor have any evidence to show that the tub was installed 15 years ago?
Is a building permit required for the tub? Was one required 15 years ago?

Have you formally notified him to remove his tub from your property?

You should probably hire an attorney of your own. If he's got one, you NEED one.
 

BERTY66

Junior Member
further to Zoning violation and Adverse Poss.

Hello. To Steve F. specifically, I am presuming neighbor is claiming in excess of ten years that the tub has been there, since his lawyer states in recent letter that they will rely on adverse possession if I move to construct a fence actually ON the surveyed straight line, as opposed to going around the extant tub. I will impress on lawyer when I (or my JD) call him, that burden of proof here is a high one, and 100% on them.

I have been here for 30 years, they only 22 years, so I was here first. I believe that no building permit was or is required to install the tub, tho I will check on this, but in any case the zoning case is moving ahead without delay (if you can call up to one year as no delay!) to prosecution, and I see no way he can squirm out of having to move the tub itself... since it is not only not 6 ft. away from line, it actually straddles and goes over it by 2 ft.!

Yes, I have sent certified and registered mail notices asking him to move structures off the line, as well as about a year ago a notice to him (thru a constable) that I have taken notice of his occupancy which from thenceforth is only with my permission, ie, a stop to any further AP period elapsing.

Something else I failed to mention, I also checked city records and beyond the tub he about 15 yrs ago added a house addition (expanded kitchen and dining room it appears) to rear of house, plus a outside deck at rear as well. These don't cross the property line so are not an issue re the fence, but both deck and addition appear to violate the 15 ft. minimum setback required (for years and years I believe) by city ordinance, since they are between only 10 to 12 ft. off the line. However when he constructed these he did not get any zoning variance(s) and/or building permit(s), nor related required occupancy inspection(s).

I believe I could hold this variance violation in reserve (a Damocles's sword in other words) if I wanted to get his agreement to drop the AP issue... since if I did pull trigger on the variance issue with the house itself, that could set off major action by the city of EP, no? (They don't normally like people building things that violate zoning without proper variances, permits etc., correct?)

Your thoughts much appreciated. Albert L.
 

VictorD

Junior Member
Here in MA, all zoning issues are local (city or town ordinances).

Adverse possession, on the other hand is controlled by a statewide statute.

In the case of a conflict, the principle seems to be that state law trumps local law.

So I don't think you can use the potential zoning violation as a defense against an AP claim (though I'm not a lawyer). I assume that the situation in RI is similar.

Theoretically, even if they moved the hot tub today, they still might be able to make an AP claim for the land that the tub used to sit on.
 

BERTY66

Junior Member
Further to zoning violation as bar to AP claim...

Hello again. I think Victor's point is a good one about state vs. local jurisdiction, I will definitely check this out.

Still believe I have leverage in fact that this same neighbor 15 years ago put on a house addition and a new deck in rear of house, all in violation of set-backs (now evident given a class I survey has been done) from property lines. Thus he did not at the time get any building permit(s), zoning variance(s) or any occupancy inspections etc. normally required for such. BTW, the zoning statute here is from 1967, so easily predates his construction.

A devil's advocate acquaintance told me however a few days ago that this may in fact be a "hollow" sword I have to hold over his head, since municipalities normally have little interest in prosecuting zoning variances if the offense goes five or more years back, sort of a grandfathering thing in effect, since they have too much CURRENT business, violations etc., to attend to, and aren't going to spend any significant time and $ on such past issues...and that if he and/or his atty. did any minimal research they would be aware of this.

Thoughts anyone? Thanks.

Albert L.
 

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