Adverse possession in Virginia

What is the name of your state? Virginia

Greetings,

My husband and I have lived in a house on a small urban property since 1986. During that time, the house next door has been sold several times. At no time did any of the property owners bring any encroachment issue to our attention.

In Oct., 2002, our neighbor approached us and stated that our garage was encroaching on his property by 18 inches, with the property in question a triangle of land of approximately 77.5 square feet. The neighbor has a survey (1999) to back this up. Further research has shown two prior surveys (1990, 1996) of this property demonstrate the encroachment. Interestingly, our 1986 survey fails to demonstrate any encroachment and it was performed by the same surveyor who performed the 1990 survey on the neighbor's property!!

The garage in question was very old (extensively reconstructed in 1999) and was attached by a common wall to a garage at the rear of our neighbor's property. A very old fence extending(removed and reconstructed in 1992) from the common wall to the rear of the neighbor's house has served as an observed boundary line for many years.

We think that we may have a case for adverse possession as our efforts to negotiate (share the land in question) have failed. He wants it all!!

Thanks in advance,

Catmama

[HomeGuru]

[quote]Originally posted by Catmama
[b]What is the name of your state? Virginia

Greetings,

My husband and I have lived in a house on a small urban property since 1986. During that time, the house next door has been sold several times. At no time did any of the property owners bring any encroachment issue to our attention.

In Oct., 2002, our neighbor approached us and stated that our garage was encroaching on his property by 18 inches, with the property in question a triangle of land of approximately 77.5 square feet. The neighbor has a survey (1999) to back this up. Further research has shown two prior surveys (1990, 1996) of this property demonstrate the encroachment. Interestingly, our 1986 survey fails to demonstrate any encroachment and it was performed by the same surveyor who performed the 1990 survey on the neighbor's property!!

**A: older standard surveying equipment could have been used in 1986 an newer laser equipment used in 1990. Ask the surveyor why the disparity.
**************

The garage in question was very old (extensively reconstructed in 1999) and was attached by a common wall to a garage at the rear of our neighbor's property. A very old fence extending(removed and reconstructed in 1992) from the common wall to the rear of the neighbor's house has served as an observed boundary line for many years.

We think that we may have a case for adverse possession as our efforts to negotiate (share the land in question) have failed. He wants it all!!

Thanks in advance,

Catmama

**A: you would need to pass the adverse possession test.

It sounds to me like you have a boundry dispute and not adverse possession. You may also have a law case against your survayer for error and omissions. see a lawyer.

Hello,

Thanks, guys, for the responses to my inquiry. Any additional comments are appreciated :-))

Regarding our erroneous survey from 1986, it is evident to us that the surveyor merely drew up a report based on the location of the common wall beween our garage and the neighbor's garage as well as the location of the fence located along what had been for many years the observed boundary line (lazy survey). As you suggested, bhirst, we plan to discuss the surveyor's liability in this situation with our attorney. The surveyor offers us no explanation at this time, other than his statement that the survey is wrong.

Regarding the adverse possession test:

A. Actual, open, notorious: yes;

The old fence stood on the observed property line for many years prior to our purchase of the property in 1986. We have a neighbor who states that it was in place in 1980 and appeared old at that time. As I said, the fence was removed and reconstructed along the same line in 1992.

We live in a historic district. The houses date back to 1910-1920, but it is unknown how old the garages were. One wall of our garage (since demolished) contained a small opening where a coal chute was positioned off of the alley . The neighbor's garage appeared to have been constructed first. The garage on our property was constructed of block on three sides except on the side where the neighbor's brick wall served as the common wall. As I said, our garage was almost completely torn down in June, 1999 with the exception of the common brick wall and two short sections of block coming off of it. We reconstructed the garage and enhanced our storage area by adding a large second story addition to the structure. Our neighbor said nothing at this time regarding an encroachment issue and continued to say nothing until October, 2002.

B. Exclusive and continuous: yes;

Based on the old structure of the garage, the location of the old fence and testimony of our neighbors, the disputed land has been under our control or that of our predecessors-in-title for many years past the 15 year statutory period (Virginia).

C. Hostile: ??;

This is the part of the test that we are uncertain about. We honestly did not know of the encroachment. The prior owners, who sold us the house, failed to reveal this to us and the lazy survey by our surveyor compounded the situation. In Virginia, a hostile claim follows the "Maine rule" which requires that the person claiming adverse possession be aware of the tresspassing and we were not. But, we have a recent statement from the prior owners that they were aware of the encroachment and that they thought they had adversely possessed the land. Would we be able to tack on our claim of adverse possession if the prior owners were aware of the encroachment?

We have a lawyer and we have been writing letters back and forth to the neighbor's attorney. Our attempts at a compromise have failed and our attorney is to begin looking into the merits of a case for adverse possession next week.

Thanks for your time.

Catmama

[HomeGuru]

Good luck to you.

sorry, I think you want to take the neighbors land now that there is a dispute. If the previos owner will say in effect they took that land adversely, they will be a fools.As for you, if you try to take someything that is not yours, you are no more than a theif if you loose or a squatter if you win. Yor best hope is to negioate to buy the land and face your outcome as I previosly said.... look at the survayor who did a poor job and hold him accountable... That is my 2 cents.

Thanks guys! I'll let you know if anything interesting happens.

[HomeGuru]

Ok, keep us posted especially regarding the surveyor.

[jimmler]

How much did you pay for the "survey" in 1986. It is possible when you bought your house, a "mortgage survey" was the only thing done, which clearly states it does not establish boundary lines. Some states allow "mortgage surveys", some don't.

If the same surveyor came back in 1990 and did an actual "boundary survey" on your neighbors property, it is very possible they came up with a difference. Mortgage surveys typically cost around $100 to $300. A Boundary survey usually starts at $800 for a small lot, and go up from there.

You should contact the surveyor in question and ask exactly what he/she did for whom.

[HomeGuru]

Good point. Many Buyers think that staking is a survey but it is not and will not indentify encroachments.

Hello,

Thanks, jimmler and Homeguru.

We looked into this possibility. The surveys are all boundary surveys as required in our locality (some localities in Virginia do not require a boundary survey).

The surveyor has offered to come out and resurvey our property for no charge.


Catmama

[HomeGuru]

That's good. See if the surveyor can give you ideas to help the encroachment issue. Maybe even talk to your neighbor for you.

[jimmler]

Hello Home Guru, I just want to clarify something for you. I would have emailed you, but could not.

A boundary survey is a "stake" survey, where the corners of the property are determined (either found and verified or set).

You can also get a boundary and location survey, where the boundary would be determined and staked and the improvements located and shown on a drawing.

Some states allow "mortgage location surveys" in which the boundary is not determined, but the surveyor will measure off of existing fencelines or other occupation evidence. Sometimes they are accurate, sometimes they are not.

Mortgage surveys are usually very cheap compared to a boundary and location, and usually are all that is required by the lender to obtain financing (in states that allow them).

A lot of surveyors do not even perform "mortgage" surveys because of the confusion they cause the homeowners.

I know this is not relevant to this case because a boundary was done apparently incorrectly, but just wanted you to know.

Julie,
12 years working in surveying

[HomeGuru]

[quote]Originally posted by jimmler
[b]Hello Home Guru, I just want to clarify something for you. I would have emailed you, but could not.

**A: sorry, I do not accept email from this website. And thanks for posting.
*************
A boundary survey is a "stake" survey, where the corners of the property are determined (either found and verified or set).

You can also get a boundary and location survey, where the boundary would be determined and staked and the improvements located and shown on a drawing.

**A: the definition and interpretation of the two may be different depending upon the State and City/County. In some parts of the country, staking just identifies the property corners and does not indentify the boundaries, no survey map is given and only the property corner pins are marked. If a boundary survey is ordered, the property is staked and the boundaries are located, and a survey map is provided. Thus a boundary survey could be a staking survey but a staking survey may not always be a boundary survey. In addition, there are 2 ways to complete a staking survey. By either locating one property corner (per professional standards) and estimating the other corners via the legal description or by locating all property corners. The second would be the most accurate. This type of survey may or may not identify encroachments.
*************
Some states allow "mortgage location surveys" in which the boundary is not determined, but the surveyor will measure off of existing fencelines or other occupation evidence. Sometimes they are accurate, sometimes they are not.

**A: in some locales, some mortgage surveys are staking or boundary surveys.
***********
Mortgage surveys are usually very cheap compared to a boundary and location, and usually are all that is required by the lender to obtain financing (in states that allow them).

**A: I agree.
**********
A lot of surveyors do not even perform "mortgage" surveys because of the confusion they cause the homeowners.

**A: correct.
************
I know this is not relevant to this case because a boundary was done apparently incorrectly, but just wanted you to know.

Julie,
12 years working in surveying

**A: thanks for your post.
And to add while we are discussing the subject:
There are also various other types of surveys such as:
1. ALTA/ACSM survey, commonly called a land title survey which may cost $5000-10000 but is the most accurate. ALTA=American Land Title Association and ACSM= American Congress on Surveying and Mapping. The boundaries are indentified and measured as well as the improvements that sit on the land.
2. Topograhic survey- when the property is not flat and the property includes high landlow evels such as a slope, terrace, hill, mountain, ditch, swale, valley etc.
3. As-Built or Encroachment survey- ususally done upon completion of new construction on large residential and commercial buildings.

[HomeGuru]

[quote]Originally posted by jimmler
[b]Hello Home Guru, I just want to clarify something for you. I would have emailed you, but could not.

**A: sorry, I do not accept email from this website. And thanks for posting.
*************
A boundary survey is a "stake" survey, where the corners of the property are determined (either found and verified or set).

You can also get a boundary and location survey, where the boundary would be determined and staked and the improvements located and shown on a drawing.

**A: the definition and interpretation of the two may be different depending upon the State and City/County. In some parts of the country, staking just identifies the property corners and does not indentify the boundaries, no survey map is given and only the property corner pins are marked. If a boundary survey is ordered, the property is staked and the boundaries are located, and a survey map is provided. Thus a boundary survey could be a staking survey but a staking survey may not always be a boundary survey. In addition, there are 2 ways to complete a staking survey. By either locating one property corner (per professional standards) and estimating the other corners via the legal description or by locating all property corners. The second would be the most accurate. This type of survey may or may not identify encroachments.
*************
Some states allow "mortgage location surveys" in which the boundary is not determined, but the surveyor will measure off of existing fencelines or other occupation evidence. Sometimes they are accurate, sometimes they are not.

**A: in some locales, some mortgage surveys are staking or boundary surveys.
***********
Mortgage surveys are usually very cheap compared to a boundary and location, and usually are all that is required by the lender to obtain financing (in states that allow them).

**A: I agree.
**********
A lot of surveyors do not even perform "mortgage" surveys because of the confusion they cause the homeowners.

**A: correct.
************
I know this is not relevant to this case because a boundary was done apparently incorrectly, but just wanted you to know.

Julie,
12 years working in surveying

**A: thanks for your post.
And to add while we are discussing the subject:
There are also various other types of surveys such as:
1. ALTA/ACSM survey, commonly called a land title survey which may cost $5000-10000 but is the most accurate. ALTA=American Land Title Association and ACSM= American Congress on Surveying and Mapping. The boundaries are indentified and measured as well as the improvements that sit on the land.
2. Topograhic survey- when the property is not flat and the property includes high landlow evels such as a slope, terrace, hill, mountain, ditch, swale, valley etc.
3. As-Built or Encroachment survey- ususally done upon completion of new construction on large residential and commercial buildings.