Adverse Possession?

[Ananisapta]

In NC, our HOA is arguing about whether to rebuild the entrance to our neighborhood, including a new gate to replace the one that was installed decades ago. One argument that was raised is that we can't do anything because the current gate is outside the boundaries of the HOA (by a few feet). The counter-argument is that our HOA has maintained, repaired, and upgraded said gate and nearby land for nearly two decades without any protest from any other party. A local law office posted the following: "In North Carolina, to acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period under known and visible lines and boundaries." What do you think?

 

[Zigner]

In NC, our HOA is arguing about whether to rebuild the entrance to our neighborhood, including a new gate to replace the one that was installed decades ago. One argument that was raised is that we can't do anything because the current gate is outside the boundaries of the HOA (by a few feet). The counter-argument is that our HOA has maintained, repaired, and upgraded said gate and nearby land for nearly two decades without any protest from any other party. A local law office posted the following: "In North Carolina, to acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period under known and visible lines and boundaries." What do you think?

I think the HOA's leadership needs to consult with legal counsel about this matter.

 

[FlyingRon]

Yep, a lawyer is going to be required if you want to take adverse possession and perhaps unravel the mess you have now if you have an infringing use.

First off, it takes TWENTY YEARS in NC of such possession (I'll assume there is no color of title issue here). It also matters who the current owner of record is. Also, if there are easements, they may trump the other aspects that would apply. I'm not even sure if an HOA as a whole can qualify for exclusive possession.

 

[Bali Hai Again]

In NC, our HOA is arguing about whether to rebuild the entrance to our neighborhood, including a new gate to replace the one that was installed decades ago. One argument that was raised is that we can't do anything because the current gate is outside the boundaries of the HOA (by a few feet). The counter-argument is that our HOA has maintained, repaired, and upgraded said gate and nearby land for nearly two decades without any protest from any other party. A local law office posted the following: "In North Carolina, to acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period under known and visible lines and boundaries." What do you think?

I think that would be for a judge to decide. I also think that adverse possession laws are archaic and stupid. Those who are familiar with those laws will try to use them against those who are not, like a neighbor mowing the grass on your side of the boundary then claiming possession. I think that is theft.

 

[Taxing Matters]

What do you think?

I think that there is not enough information here to answer the question. The HOA should consult an attorney before starting this project. That's part of what HOA fees are supposed to pay for. Note that the HOA would need an attorney anyway because to get good title to the property via adverse possession it would need to do a suit to quiet title.

I also think that adverse possession laws are archaic and stupid.

I disagree. Adverse possession serves a necessary function in putting to good use property that is otherwise abandoned or unused. Yes, in boundary disputes it can sometimes be abused, but every property owner should know the boundaries of the property he or she is buying. I wouldn't buy a used car without having it checked by a good mechanic and I certainly wouldn't buy land without knowing exactly what I'm getting.

 

[Litigator22]

I think that would be for a judge to decide. (?) I also think that adverse possession laws are archaic and stupid. Those who are familiar with those laws will try to use them against those who are not, like a neighbor mowing the grass on your side of the boundary then claiming possession. I think that is theft. (?)

Huh, whether or not the HOA should elect to rebuild the entrance gate is for "a judge to decide"? Such a dilemma. Any suggestion as to how to present it to a jurist?

One more huh. . . if I pay my neighbor to mow my lawn, can he still steal if from me? One way or the other would his possessory claims include the clippings. I do have a compost pit.

Incidentally, his yard is much nicer than mine, but I seriously doubt that I have another 20 years left. I know my back doesn't.

 

[adjusterjack]

One argument that was raised is that we can't do anything because the current gate is outside the boundaries of the HOA (by a few feet).

Did anybody think to look up county records to see if an easement had been granted when the gate was first built?

If no recorded easement, did anybody think to look up the owner of the property and ask for an easement?

 

[Ananisapta]

"If no recorded easement, did anybody think to look up the owner of the property and ask for an easement? "

I like this idea the best. Personally, I think some of our board are die-hard do-nothings looking for any excuse to block improvements.

 

[adjusterjack]

I think some of our board are die-hard do-nothings looking for any excuse to block improvements.

Then round up other homeowners, vote them out, and vote in replacements.

 

[Bali Hai Again]

I think that there is not enough information here to answer the question. The HOA should consult an attorney before starting this project. That's part of what HOA fees are supposed to pay for. Note that the HOA would need an attorney anyway because to get good title to the property via adverse possession it would need to do a suit to quiet title.



I disagree. Adverse possession serves a necessary function in putting to good use property that is otherwise abandoned or unused. Yes, in boundary disputes it can sometimes be abused, but every property owner should know the boundaries of the property he or she is buying. I wouldn't buy a used car without having it checked by a good mechanic and I certainly wouldn't buy land without knowing exactly what I'm getting.

It doesn’t matter if you buy land and you know exactly what you are getting or not, the law says someone can legally steal it from you.

If I was the titled owner of the property the thief would be facing a court battle. With these stupid adverse possession laws I may or may not win of course. In the absence of these stupid adverse possession laws there would be no question who the lawful owner of the land was and the trespasser would be forced to negotiate a remedy or vacate.

With unscrupulous squatters and large tracts of land rarely, if ever, visited by the out of state owner you would need a 24 hour guard to patrol and protect it.

 

[Bali Hai Again]

Huh, whether or not the HOA should elect to rebuild the entrance gate is for "a judge to decide"? Such a dilemma. Any suggestion as to how to present it to a jurist?

One more huh. . . if I pay my neighbor to mow my lawn, can he still steal if from me? One way or the other would his possessory claims include the clippings. I do have a compost pit.

Incidentally, his yard is much nicer than mine, but I seriously doubt that I have another 20 years left. I know my back doesn't.

If you give written permission for your neighbor to mow the portion of your lawn that they intend to steal then they can’t steal it. Of course in that event their purpose to steal it is defeated and they would likely stop mowing. If there weren’t adverse possession laws the unscrupulous neighbor would not have attempted to steal the property in the first place.

 

[Taxing Matters]

It doesn’t matter if you buy land and you know exactly what you are getting or not, the law says someone can legally steal it from you.

No, that is not what the law says. What the law does say is that if you as the property owner sleep on rights for a sufficient period of time you are at risk of losing your property. So, as a property owner, it's up to ensure you actively enforce your rights to your property.

With unscrupulous squatters and large tracts of land rarely, if ever, visited by the out of state owner you would need a 24 hour guard to patrol and protect it.

Again, not correct. It wouldn't take a "24 hour guard" to protect your property rights. But too many absentee landowners do nothing to enforce their rights for decades, and that is what sets them up to lose it. If you are going to be an absentee landowner it would behoove you to check on the property from time to time, at least once a year, to see what is going on there or hire a property management company to go out there on a regular basis to ensure that (1) your property isn't being destroyed either by people or by natural conditions and (2) that there are not conditions there that might trigger an adverse possession claim. It is primarily those who have no clue about adverse possession and thus don't bother to police their own property at all who lose adverse possession cases.

 

[Bali Hai Again]

No, that is not what the law says. What the law does say is that if you as the property owner sleep on rights for a sufficient period of time you are at risk of losing your property. So, as a property owner, it's up to ensure you actively enforce your rights to your property.



Again, not correct. It wouldn't take a "24 hour guard" to protect your property rights. But too many absentee landowners do nothing to enforce their rights for decades, and that is what sets them up to lose it. If you are going to be an absentee landowner it would behoove you to check on the property from time to time, at least once a year, to see what is going on there or hire a property management company to go out there on a regular basis to ensure that (1) your property isn't being destroyed either by people or by natural conditions and (2) that there are not conditions there that might trigger an adverse possession claim. It is primarily those who have no clue about adverse possession and thus don't bother to police their own property at all who lose adverse possession cases.

Agree with bolded. The average property owner buys property with the expectation that they own the property until such time they voluntarily give up that ownership and they are not aware of adverse possession. Thus they think that if the hostile neighbor wants to mow a portion of their lawn let them do if it makes the neighbor feel better. It’s less they have to mow and they avoid a confrontation. To keep piece why should they call the police for such a (perceived) trivial matter? Stupid adverse possession laws are exactly why the police should be called and a report made every time.

 

[doucar]

You don't have to involve the police All you have to say is thank you for mowing part of MY lawn and then it is no longer hostile (of the open, notorious and hostile requirement for adverse possesion)

 

[Zigner]

You don't have to involve the police All you have to say is thank you for mowing part of MY lawn and then it is no longer hostile (of the open, notorious and hostile requirement for adverse possesion)

Your statement is not correct. What you have described isn't what "hostile" means in this context. In this context, "hostile" means (paraphrasing) acting against the rights of another.