Inches and adverse possession

[Jessica999]

What is the name of your state? NY

Hi- My question is based on the numerous adverse possession/squatter's rights posts in this forum....which I read with something close to horror, (!) ok maybe just astonishment.

I placed a fence inside the boundary line between me & my neighbor's properties (based on established survey pins). Where I live there are no setback requirements, but was told by local officials to set it back a few inches out of 'courtesy.' They assured me I wouldn't "lose" that property, still mine. So I did as told.

From what I have read on the forum, it's true that if the neighbor mows that lawn (approx 5" x 50') behind my fence, he can claim it as his OWN after 10 years. ((Is that not ridiculous?? He knows it's not his.))

Anyhow my question = what exactly are the steps in undertaking adverse possession? I recognize they can't just take it, the action must go through a court. For the fairly tiny amt of land behind the fence, what would be the approximate cost? Is it a lengthy process? And would a judge be adverse to granting it, given its (to me anyhow) frivolity?

Thanks very much in advance for your insight******************************************..What is the name of your state?

 

[ErinGoBragh]

Are you paying taxes on that few inches of land?

 

[Jessica999]

respones

Absolutely, yes.

 

[VictorD]

What is the name of your state? NY

Anyhow my question = what exactly are the steps in undertaking adverse possession? I recognize they can't just take it, the action must go through a court. For the fairly tiny amt of land behind the fence, what would be the approximate cost? Is it a lengthy process? And would a judge be adverse to granting it, given its (to me anyhow) frivolity?

Thanks very much in advance for your insight******************************************..What is the name of your state?

I'm not a lawyer, but my next-door neighbor filed an adverse possession case against me so I've had to learn something about it. (Fortunately, their case was thrown out.)

I live in MA, so I researched some actual MA cases. Fleury vs. Moir is interesting. It involved a fence, built in 1977, that wasn't quite on the property line. It was between 6" and 18" inside Fleury's property. So Moir (and the people who owned the property before him) mowed the grass on his side, right up to the fence. In 2002, Moir built another fence right next to the old one. Obviously, the new fence was on Fleury's property.

Fleury filed a lawsuit against Moir claiming tresspass in September 2003. Moir responded by claiming adverse posession of the narrow strip on his side of the fence. The case went to MA Land Court and was decided in Moir's favor in October, 2007. The decision was actually in the form of a Summary Judgement. The case would have dragged on longer if there had been a trial.

How much did it cost? Well, Moir is an attorney who represented himself, so it's hard to tell.

Obviously, the judge didn't consider the claim to be frivolus, and Fleury lost a strip of land that was no more than 18" wide.

Yes, it can happen.

 

[Jessica999]

Thanks for the reply.

That case sounds to me like sour grapes, at least to a certain extent. The one claims trespass, the other claims adverse possession --feelings are hurt, bad blood, etc. It can escalate quickly and get pretty personal.

 

[VictorD]

Thanks for the reply.

That case sounds to me like sour grapes, at least to a certain extent. The one claims trespass, the other claims adverse possession --feelings are hurt, bad blood, etc. It can escalate quickly and get pretty personal.

Well, not really. The law is written as a statute of limitations. You can't claim trespass against someone if they have been in possession of your land for 20 years or more (in MA - 10 years in NY). So adverse possession is a standard defense against a lawsuit for trespassing.

My point is: You are at risk. You might think, "my neighbors would never do that to me". But they could. Or they could sell their house and the new buyer could file a claim for your land. They might not be able to win, but you'd still have to pay a lawyer to defend you.

Fortunately, there's a way for you to protect yourself. Your neighbors can only take your land if they're using it "adversely", that is, without permission. So all you have to do is to talk to your neighbors and make sure that they know where the property line is and that they are mowing the grass on your side WITH YOUR PERMISSION. Then put it all in writing and have both parties sign it. I wish I had done that 5 or 10 years ago. It would have saved me a lot of time, money, aggravation.

Want to read an even scarier case? Check out http://www.landgrabber.org

 

[Jessica999]

VictorD- what happened in your situation?

Plus, if a neighbor has built an improvement on your property (and you KNOW it's your property...and THEY know it's your property) would a homeowner be within his/her rights to tear down that improvement? Let's say the improvement might be fence, bricks, garden, etc,,,not a building.

Or would removal of encroaching items be considered some type of destruction of property issue?

If I may be specific, if a neighbor plants a tree on my property and I say nothing, the land where that tree sits could potentially be theirs in ten yrs? If I ask the neighbor to move the tree and he doesn't, do I have the right to? Could he sue me for destroying his tree? Would the tree become mine?

I'm also amazed by the immoral aspect of adverse possession --to me it's stealing, plain & simple. The information contained on that link is scary.

Plus, does anyone know the approximate costs involved in a typical adverse possession claim? Are we talking thousands? Thanks.

 

[Jessica999]

a bit more

My questions are based upon my 'not' suing for encroachment, but a self help approach.

However, as related to my original post --if I were to be presented with an adverse possession claim, the burden is on the other party to prove their case, correct? What would be involved, pictures? testimony? it can't just be their word against mine....Do they just say 'hey this is now my property, afterall we did plant a tree there 10 yrs ago' -?? So what if I then went out and chopped down that tree? Does the claim disappear?

Apologies if these questions seem basic, but I can't find specifics about the suit/steps themselves.

 

[Jessica999]

get it in writing

I do understand the 'permission' part of adverse possession and intend to get something in writing. What would be acceptable, does a lawyer need to get involved? Thanks.

 

[divgradcurl]

I do understand the 'permission' part of adverse possession and intend to get something in writing. What would be acceptable, does a lawyer need to get involved? Thanks.

Just send your neighbors a letter saying something like "you have permission to maintain that portion of my property that is on your property's side of the fence" or something like that. Maybe you can include something like "this license to maintain this portion of my property does not grant the right to build permanent structures on this land, does not grant an easement, is exclusive to [enter neighbors name] and is not transferable, and permission is revocable at any time without notice." You might be able to find some language on the web somewhere that might be a better fit.

There is no reason to have the neighbor sign anything -- it is unecessary, and honestly, it is against your neighbor's interest to sign anyway.

Write a letter, sign it, make a copy to keep, and send the letter to your neighbor via certified mail, and keep the receipt that you get when your neighbor signs for the letter. That should be all you need to protect yourself from an adverse possession claim.

 

[divgradcurl]

Are you paying taxes on that few inches of land?

Paying taxes is not a requirement for adverse possession in New York.

 

[Zigner]

The only thing I'd say different is that the license is revocable at any time and immediately upon notice in any form.

 

[VictorD]

Plus, if a neighbor has built an improvement on your property (and you KNOW it's your property...and THEY know it's your property) would a homeowner be within his/her rights to tear down that improvement? Let's say the improvement might be fence, bricks, garden, etc,,,not a building.

Yes, if a neighbor builds something on your property, you have the right to remove it. Typically, (after asking them nicely to remove it) you would send them a certified letter telling them to remove whatever it was and restore the property to its previous state within a certain number of days. If they don't do it, then you can remove it yourself and perhaps take them to small claims court if there are any expenses involved.

Now if they've been using your land for more than 10 years, this is the kind of action that might trigger an adverse possession claim. They might say (through their lawyer), "you can't rip those bricks up, they're on land that we now own by adverse possession because we've used that land for 10 years". This claim would come in the form of a lawsuit to "quiet title" on the piece of your land that they want to take over. For good measure, they would probably sue you for trespass on that land because you entered it ripped the bricks up.

In filing the lawsuit, they will need to provide evidence that they meet all the requirements for adverse possession: open and notorious use, exclusive, continuous, and adverse. The evidence would be in the form of documents and deeds, survey plans, photographs, affidavits, etc.

Then you'll need to hire a lawyer to present your side of the case. That involves collecting the same kind of evidence. Then there will be a period of discoveries and interrogatories. Their lawyer will send you a bunch of questions and requests for documents which you will be required to answer. Of course, your lawyer will do the same thing to the other side. Next, it's time for depositions. Your lawyer can bring in various witnesses, including the neighbors who are suing you, and ask them questions (under oath), with all questions and answers being transcribed for use as evidence. Naturally, their lawyer can do the same thing for you and your witnesses.

Finally, you get to go to trial before a judge (unless one side insists on a jury trial). That will be just like you see on Perry Mason (not!). There will probably be post-trial briefs written by both lawyers and then the judge will think for a while about all the evidence and arguments that have been presented. Eventually, the judge will come up with a ruling about whose land the bricks are on.

Will it cost thousands? More like tens of thousands.

 

[LindaP777]

Why don't you simply maintain your property outside the fence line, so the neighbor doesn't have to?

 

[Jessica999]

Great, thanks for all the input. So 10’s of thousands of dollars,,, plus depositions, interrogations, paper gathering & brief making…sounds like a lawyer’s dream (!). AND, that’s a lot of $ to spend for potentially not winning.

I definitely see the point about them not signing, so a certified letter it will be.

The reason I can’t maintain that side = would be trespassing on their property. That’s what didn’t make sense to me about the ‘courtesy’ setback advice from the town when installing the fence. Live & learn.

BTW in searching adverse possession on the web, I found one pretty interesting site. Buy their materials and learn how to inhabit abandoned houses & claim them as your own! Get real property -ChEaP cHeAp ChEaP !!! Would make a great late-night infomercial.

Thanks again, I really enjoy this forum……….