Adverse Possession


M

micky

What are your thoughts?
Despite all my discussion and assesrtion and speculaton about adverse
posession, that's just thread drift. I'm not pushing you to claim
AP.

I have no objection to your choice of B, or to talking to the neighbor
etc.
 
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M

micky

He has a valid point. How do you know they knew? The AP wasn't
living in their house, or taking up the whole property. It's
very common for fences not to be in the correct place and for
neighbors not to know the exact property boundary. The neighbors
saw the fence, but that doesn't mean they also knew where the
correct property line was.
I think it means they knew the OP was using all the land on his side
of the fence.
That is what hostile means, that you don't have permission.
It's an essential part of any AP statute.
Hostile looks at things from the OP's pov. Pemitted or not refers to
the original owner's pov.

The parties are reverese in my case compared to the OP's. I'm the
original and legal possessor. I'm in the process of writing up a
license for my n'bor or his agent to walk on the part of my lawn he
thinks he owns, to mow the grass, and to trim the bushes. He's
actually had my permission from the beginning, but now I'm putting it
in writing and will file it with the county clerk's office.

OTOH, he has indicated to some degree hostile possession. Once when I
was mowing the lawn, and once when I was up on a ladder trimming the
bushes, he told me "You don't have to do that". when I said I think I
do, the second time he said "Sometimes I'd like to knock your head
off."
IMO other clauses come at the

I'd be very interested in the issue of property taxes. Presumably
the owner has been paying them on that piece of property all these
years. Most of the AP statutes I've read require the AP to be
paying the taxes, ie treating the property in question as if the
Yeah but nothing about taxes in this statute.
AP actually owned it. I would not be surprised to fing that is
implied and interpreted that way under other parts of the statute,
eg the "open" part. If you're not paying the taxes, I'd say you're
not be open about your possession of said property. There has to
be Oregon case law that could answer this.
Maybe not. There is surely an absence of case law on a lot of things
in little Maryland.
Exactly and I think that likely means AP isn't going to work.
I think it means the taxes are irrelevant.

It true for me and probably everywhere that the amount of taxes I owe
is partly dependent on how much land I have, and that means if the
ownership actually changes hands to the OP, each tax bill shoudl be
recalculated, and that the "real owners" have overpaid their taxes for
years, paying for the land they no longer own, and may have lost
retroactively. But I don't think dollar amounts matter in deciding
if AP applies.

What who pays the taxes is meant to show is who thinks he owns the
land. Very few people calculate their square footage and check on
the rate per square foot and multiply and compare that number to the
tax bill, and then complain if it's different, and more importantly,
the OPs two neighbors probaby never did that. They pay whatever
the bill says, so their paying is not an indicium of their owning the
displuted land.

ANOTHER BIG PROBLEM WITH TAXES is a direct result of the owners'
problems. How does the owner prove the taxes he's paid covered the
land in question. He'd likely have to get someone from the tax
office to testify that they considered the original owner to own the
land in question when they, the tax office, calculated his taxes.

This is also not an issue with a separate parcel of land, where each
party claims all of it.
But a separate parcel of land no one resides on or

IF it's important there, which I agree, then I think it's also
likely to be important here.
I dont' think so. On the separate parcel paying taxes means one
thinks one owns the land. Here, it only means he doesn't know how
much land he owns, how much the taxes are meant for, or he wouldn't
pay taxes for land beyond the fence.
The true owner has been paying the taxes for 10 years. Can someone claim they have been "openly" treating a piece of
land as their own when they have not been paying the taxes on it, but
the neighbor has and the neighbor also has the title and survey that
shows they bought and paid for it? I don't think so.
I do. FWLIW I asked on the legal group about my own property,
where the issue is the boundary, and though silence doess't mean much,
no one who replied brought up taxes. If I post there again, I will
ask about taxes.

And, if I end up in court, I will definitely mention that I've been
paying the taxes. Thank you for pointing it out...... Thinking about
this for the first time: He of course will say, How do you know
you've been paying the taxes? We haven't estabilished where the
boundary is.

I will say, Yes we have. Look at the plat. That's what matters. The
plat is hard to read because of all the things marked on it, but with
help he should be able to read it. . Amazingly in a way, it's a
little easier to read on the computer, where I can enlarge it a lot
more than I think I could with a magnifying glass.

My property is 6-sided, which is where some of the confusion comes in.
The neighbor's is 4-sided, and he may think mine is too. Also I
have a fence and the land in question is outside the fence. He
probably thinks any land outside the fence is his. Although for the
first several years he lived here, I and only I mowed the lawn and
trimmed the bushes there. So he might just be pulling my chain,
though he sure seems sincere.

(I also have a survey, which I have to look at again but I think it's
easier to read.)
 
M

micky

It's not stated, but it's a reasonable assumption the real
owner of the property has been paying the taxes, otherwise it
would have gone up for tax sale. In most of the AP statutes I've
seen, for AP to work, it has required that the AP pay the taxes
on the property for the required period as well. That seems
reasonable, as it shows they are treating the property in
question as their own. That might be implied in some of the
verbage of the Oregon stature too, ie the "openly" part. It
Paying taxes is not part of openness. Onlookers don't know who pays
how much for what land for taxes. When you mail the money in, they
don't open your mail, and if you pay on the net, they haven't hacked
your computer (and shouldnt' be required to.)

Openness refers to what the neighbors can see and what the original
owner could see if he looked.
could be argued that by not paying the taxes on the piece in
question, you are concealing your claim to it.

There must be case law in Oregon showing what the effect of
who pays the taxes is on the case outcome.
I got the impression that the second footnote on the page the OP
posted pointed to a list of all appealed cases related to the statute.
And this list seemed to match the list of "annotations" in the second
column on the OP's page.

Except for the fact that they don't have a date on either page, as
usual, and we can't tell how recently it was updated. Of course
pocket parts only come out once a year too. But there is also an
unsorted list of court decisions that comes out monthly or weekly.
Before preparing for trial and again before going to trial, a lawyer
should check cases on that list to see if any are relevant to his
case.
As to what to do, one factor missing is what the effect of the
few feet is to each property. If it's doesn't make a drastic
difference in lot value, usability, access, etc to the OP, I'd
opt for getting the new fence where it belongs. It's probably
going to avoid a lot of legal fees, at the very least.
You may well be right.
 
P

Percival P. Cassidy

What Jon Danniken is saying MIGHT be true, depending on where you live.

Both Canada and the USA inherited our system of laws from Britain, and
600 years ago in Britain, forgery was the quickest, easiest way to get
rich. With no public education administered by the government and paid
for by taxes, few people could read or write. And, that was convenient
if you wanted to get rich quick by challengine a will. When rich old
Lord Pompous dies, and his will leaves his estate of Blackacres to his
son, you show up with a forged will claiming that Lord Pompous had a
fling with your mother, and you are Lord Pompous' illegitimate child.
And to prove, you show a will signed by Lord Pompous with his customary
"X" granting half of Blackacres to you, and the other half to his know
son.

Since few people could read or write at the time, it was customary for
the wealthy to employ the services of a "notary public" who could read
and write and would transcribe a person's intentions to paper and vouch
for the credibility of that paper. The problem is that notary publics
could be bribed, and so you could often have a half a dozen different
wills popping up, each as legitimate on their surface as the others.

The doctrine of Adverse Possession arose as a means of dealing with the
problem of widespread forgery. It allowed judges to recognize the
claims of people well known in the community for generations to succeed
against the apparantly superior claims of total strangers who showed up
after a death claiming to be illegitimate children of the deceased.

In Britain and France, up until about 1850, the rights to property were
recorded in something called a "land registry" where every time a
property was sold or divided amongst heirs or whatever, the bill of sale
or will would be registered. So, if you wanted to buy a piece of land,
you had to search through all of the bills of sales and wills registered
in that land registry for, in some cases, centuries, to prove that the
seller of the land really owns what they're wanting to sell. Since that
time, however, there have been laws that require that the seller only
prove his claim of ownership over the past 40 years.

The problem with that system is that the bills of sale and wills would
be damaged by continuous handling, and at a time before photocopiers,
often only the owner and the land registry would have originals of the
bill of sale or will by which the owner could defend his claim to his
land. And, in a fire like the London fire of 1666, which 2/3 of the
city went up in flames, then not only did the land registry go up in
flames, your copy did too. So, not only did you lose your house because
insurance didn't exist back then, you also lost the ability to prove you
owned the land you used to live on.

So, in the mid-1850's an Australian by the name of Torres applied the
"TorreNs" not "Torres".

Perce
 
T

trader4

Paying taxes is not part of openness.
It is in my world. If you believe you own a piece of property,
you better be paying the taxes on it, or at least nobody better
be. You sit there for 10 years, let the neighbor pay the taxes
on a piece of property you claim to own, you don't pay, and that
is open? I'd say you're hiding what you're up to. If you were
legit, you'd be paying the taxes.




Onlookers don't know who pays
how much for what land for taxes.
Onlookers aren't the issue.



When you mail the money in, they
don't open your mail, and if you pay on the net, they haven't hacked

your computer (and shouldnt' be required to.)


Irrelevant




Openness refers to what the neighbors can see and what the original

owner could see if he looked.
I'd say you're not open, that you are in fact a sneak, if
you knowingly allow someone else to pay property taxes on a
piece of land you own. Some states agree, because it part
of their AP laws. In order to claim adverse possession,
someone else, ie the rightful owner, can't be paying the
property taxes. The person making the AP claim has to be
paying them. Sounds very reasonable to me.
 
T

trader4

I think it means they knew the OP was using all the land on his side

of the fence.
So what? It doesn't prove that the neighbor knew the land
on the other side of the fence was actually his.

Hostile looks at things from the OP's pov. Pemitted or not refers to

the original owner's pov.
Permitted or not clearly involves both parties. If one party
agrees to allow the other to use their property, then it's permitted
and not hostile.






The parties are reverese in my case compared to the OP's. I'm the

original and legal possessor. I'm in the process of writing up a

license for my n'bor or his agent to walk on the part of my lawn he

thinks he owns, to mow the grass, and to trim the bushes. He's

actually had my permission from the beginning, but now I'm putting it

in writing and will file it with the county clerk's office.



OTOH, he has indicated to some degree hostile possession. Once when I

was mowing the lawn, and once when I was up on a ladder trimming the

bushes, he told me "You don't have to do that". when I said I think I

do, the second time he said "Sometimes I'd like to knock your head

off."
In that case, what makes you think he's going to sign the
agreement you're drawing up?


Yeah but nothing about taxes in this statute.
There may be in the case law.



Maybe not. There is surely an absence of case law on a lot of things

in little Maryland.
It's hard to imagine that in an entire state there hasn't been
a single case where the issue of who paid the taxes on a piece
of property in an AP case hasn't come up.




I think it means the taxes are irrelevant.



It true for me and probably everywhere that the amount of taxes I owe

is partly dependent on how much land I have, and that means if the

ownership actually changes hands to the OP, each tax bill shoudl be

recalculated, and that the "real owners" have overpaid their taxes for

years, paying for the land they no longer own, and may have lost

retroactively. But I don't think dollar amounts matter in deciding

if AP applies.
Clearly in some states it does, because unless you've paid the
property taxes on the piece of land, you can't assert AP.



What who pays the taxes is meant to show is who thinks he owns the

land. Very few people calculate their square footage and check on

the rate per square foot and multiply and compare that number to the

tax bill, and then complain if it's different, and more importantly,

the OPs two neighbors probaby never did that. They pay whatever

the bill says, so their paying is not an indicium of their owning the

displuted land.

Again, some states have laws that say it does indeed matter.

ANOTHER BIG PROBLEM WITH TAXES is a direct result of the owners'

problems. How does the owner prove the taxes he's paid covered the

land in question.
He's paid taxes on the lot. He has a survey and title that
show where that lot begins and ends. Good grief!



He'd likely have to get someone from the tax
office to testify that they considered the original owner to own the

land in question when they, the tax office, calculated his taxes.



This is also not an issue with a separate parcel of land, where each

party claims all of it.
Again, it is in states that say you can't use AP if you have
not been paying the taxes on the property.


I dont' think so. On the separate parcel paying taxes means one

thinks one owns the land. Here, it only means he doesn't know how

much land he owns, how much the taxes are meant for, or he wouldn't

pay taxes for land beyond the fence.









I do. FWLIW I asked on the legal group about my own property,

where the issue is the boundary, and though silence doess't mean much,

no one who replied brought up taxes.
That's reassuring.


If I post there again, I will
ask about taxes.



And, if I end up in court, I will definitely mention that I've been

paying the taxes. Thank you for pointing it out...... Thinking about

this for the first time: He of course will say, How do you know

you've been paying the taxes? We haven't estabilished where the

boundary is.
And why is that? You don't have a title? A survey with
pins in the ground?
 
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M

micky

So what? It doesn't prove that the neighbor knew the land
on the other side of the fence was actually his.
As I said, I don't think the neigbor has to know this. It's not in
the statute and no case is listed related to this. he only has to
know that someone else is using the land.
Permitted or not clearly involves both parties. If one party
agrees to allow the other to use their property, then it's permitted
and not hostile.
That's one case, if he agrees.

If he doesn't agree, if he says nothing but still permits it, then its
permitted but it may also be hostile.

If permission and no hostility were locked together. if they were the
same concept, then they wouldn't be listed separately in the Eunuch
rule, or some statutes.

Permission doesn't require any thoughts or awareness on the part of
the actual owner. He doesn't have to *give* permission. If he sees
or could see what's going on and does nothing, that's permission. Or
put more accurately, the actions by the adverse possessor are
permitted. It's non-permission that takes at least a little effort on
his part.
In that case, what makes you think he's going to sign the
agreement you're drawing up?
I don't expect him to. I'm giving him permission. He then has it
whether he wants it or not. The lawyers on the legal ng agreed that
giving permission is unilateral.

If you tell your kid, You can go out to play. You don't have to be
back until 6, he has permission to go out and not come back until 6
whether he wants to go out or not.
There may be in the case law.
Not in Oregon afaict.
It's hard to imagine that in an entire state there hasn't been
a single case where the issue of who paid the taxes on a piece
of property in an AP case hasn't come up.
AIUI, lowest level courts don't make precedent and their decisions are
recorded but not reported in "reporters". They apply only to the case
at hand. Unless they are appealed, then the decision gets listed in
the Annotated Statutes of Oregon, and what I incorrectly said was
probably called the Northwest Reporter. Actually it's called the
Pacific second Reporter, I think.

If you look at the cases in the second column of the OP's statute
page, Annotations, there are two citations for each one. The first
includes " Or App " , Oregon Appellate, and the second includes "P2d",
which I think is Pacific second, meaning they closed out the original
Pacific series and started Pacific second. For example, "Exclusivity
requires use consistent with ownership, not physical exclusion of all
others. Slak v. Porter, 128 Or App 274, 875 P2d 515 (1994)". The
numbers 128 and 875 are volume numbers in the series. The numbers 274
and 515 are page numbers in the respective books.

But what I really know is that wrt to a couple of statutes that I was
involved in, there were no notes referring to cases with issues that
had anything to do with any issues in my case.

Clearly in some states it does, because unless you've paid the
property taxes on the piece of land, you can't assert AP.
I'ld like to see the exact words. I'll bet it's talking about cases
where the whole parcel is claimed by the AP, not some chunk of his
neighbor's land.
Again, some states have laws that say it does indeed matter.



He's paid taxes on the lot. He has a survey and title that
show where that lot begins and ends. Good grief!
He may or may not have a survey. Either way, I'll have to think
about this.
.............
And why is that? You don't have a title?
The deed only refers to the plat, no meets and bounds..
A survey with
pins in the ground?
AFAICT, there are no pins in the ground, not for my lot and not for
the whole subdivision. I borrowed a metal detector and looked. My
lot is in the corner of the subdivision, so there maybe should have
been a pin for the whole area there, not just my lot, but there
wasn't.
 
D

Dean Hoffman

I don't expect him to. I'm giving him permission. He then has it
whether he wants it or not. The lawyers on the legal ng agreed that
giving permission is unilateral.

If you tell your kid, You can go out to play. You don't have to be
back until 6, he has permission to go out and not come back until 6
whether he wants to go out or not.

Do you need to prove you gave your neighbor permission? If so,
how?
 
M

micky

Do you need to prove you gave your neighbor permission?
If it gets to court or even maybe before that, I think so.
If so,
how?
Don't know the tiny details yet, but I'll file the paper with the
County Clerk's office, just like a contractor files a lien or bank
files a mortgage. (I called the county clerk and whoever answered saw
no problems. There's probably a short form to fill out and a fee to
be paid.) I'll also send him a certified letter with the letter of
permission (a license?) and some background, in case he's forgotten.
And some making nice.

I had single women living on both sides of me for a couple years, who
were polite but not too friendly, and I understood that. When one
of them sold her house to a single guy, I hoped we'd be friends. I
still don't know what I did that annoyed him. I've asked him and he
doesn't answer and I've told him what the only thing I can imagine is,
and how that would be a misunderstanding related to the fact I thought
he was a lot younger than he is and had never owned a home before.
And that's true, but he hasn't said that was the reason. . He's
polite, but he's still not friendly, and he's angry when I mow that
little piece of lawn.

Years ago I asked him to go for a drive so we could talk about it. He
declined, but seemed a little friendlier afterwards.

At one point I offered him in a letter 250 dollars for new stereo
equipment (or whatever) to reimburse him for his mowing my grass and
trimming the bushes,(even though he started with the bushes because he
didn't like the way I was trimming them, not because they weren't
trimmed) but he didn't reply. Later I realized that another
neighbor, a guy in his 20's, was mowing the lawn, not him. This guy
mows the front lawns of 3 of his n'bors. I'm not sure if he charges
them or not. They're little, 20 feet by 25 feet, but if he doesn't
charge it's still very nice of him. I told him the little triangle
was mine, not the neighbor's, but he still mows it, and usually before
I would.

I also realized that the n'bor doesn't trim the bushes either.
Somehow he got the HOA to do that. I wrote the HOA telling them it
was my land and they don't need to waste their money havng the
landscaping company do that, but that letter was ignored too, perhaps
because the corrupt 20 year president of the HOA doesn't like me (or
most other people.) . The letter of permission will have a sentence
giving them permission too.

So in other words, the neighbor has done precious little to maintain
the land but it's hard for me to say how much because I'm not outside
when he is. I cut my offer of 250 down to 125.

I've done trimming, weeding, mulching, spraying weeds under the
bushes, mowing, and spraying the lawn for weeds, but a) not that much
of it, and b) most people haven't seen me do any of it, since usually
no one is outside when I'm doing these things.

On top of all of this, the landscaping company in the last 2 or 3
years, once a year in the spring cleans up the bed around the bushes
and makes the bed 1/2 inch bigger on each side. That's bad because
the bed for the previous 32 years had indicated my property line on
each side. That's a big reason why I tried to get them to stop.

Sorry. More than you wanted to know.
 
W

Wes Groleau

Paying taxes is not part of openness. Onlookers don't know who pays
how much for what land for taxes. When you mail the money in, they
We can't see WHO but we can see how much.

http://acimap.us/PATI

I'm sure we're not the only county that does this.
 
W

Wes Groleau

I'd say you're not open, that you are in fact a sneak, if
you knowingly allow someone else to pay property taxes on a
piece of land you own. Some states agree, because it part
of their AP laws. In order to claim adverse possession,
someone else, ie the rightful owner, can't be paying the
property taxes. The person making the AP claim has to be
paying them. Sounds very reasonable to me.
If I am listed as the owner, then I am getting the tax bill.
How would someone else be paying it?

If he's getting the tax bill, then it's already his in the
official records. If that's wrong, gonna be a heck of a struggle fixing it.
 
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K

krw

Paying taxes is not part of openness. Onlookers don't know who pays
how much for what land for taxes. When you mail the money in, they
don't open your mail, and if you pay on the net, they haven't hacked
your computer (and shouldnt' be required to.)
Everywhere I've lived property tax records are public information. I
can find out exactly what my neighbor paid in taxes and whether
they're delinquent on their taxes. This information is often
published in the newspaper. NSA is not required.
 
H

Harry K

That's precisely the point, the the rightful owner *is* the one

paying the taxes on the land. And as I've said, I've seen statutes

for adverse possession that specifically require that the

AP be paying the taxes. If the AP believes that piece of property

that is his neighbor's is actually his, then why isn't he acting

like a legitmate property OWNER and paying the real estate taxes on it?

He knows property is taxed. He thinks he's getting this for free?

If no one is paying the taxes, that's one thing. But when the

rightful owner by title is paying the real estate taxes, I think

any court is going to take that into strong consideration versus

someone arguing that they are now the rightful owner because

a fence is off by 6 ft. Also, I've seen state statutes where

they specifically rule out de minimus claims of adverse possession

over a fence that is a few feet off, like this one.











Until such time as there is a judicial





BS.





http://www.law.cornell.edu/wex/adverse_possession





"Definition from Nolo’s Plain-English Law Dictionary



A means by which one can legally take another's property without paying for it. The requirements for adversely possessing property vary between states, but usually include continuous and open use for a period of five or more years and paying taxes on the property in question."
YOu claim to have "seen statutes requiring it" Should be simple for you tocome up with a cite then.

I got title to an abandoned country school lot bordering my place by AP. How? Under Washington law AP takes 10 years except IF one pays the taxes on it only 7years is needed. Lawyer looked up the law and came up with the solution dthat I pay the back taxes on it for the last 7 years. Done deal

Note that there is nothing in the AP law REQUIRING having to pay the taxes,only that if one does it only takes 7 years.

Harry K
 
A

Ashton Crusher

If there was a fence, even one in disrepair, that was between the
neighbors and this piece of land, that kept the neighbors from walking
on the land, except maybe to get a ball or newspaper that got tossed
there, that probably meets the standard.

That still doesn't necessarily make it adverse or hostile to the real
owners interest. The real owner starts with an interest in it, and it
was it would appear, his yard. For the neighbor to ALSO be using it
as "yard" is not necessarily hostile to the actual owner. The fence
might be worth a claim of exclusive use if it truly prevented the real
owner from getting to it IF HE WANTED TO but since it's most likely
not topped with barbed wire that could also be a questionable claim.

I think you're wrong about this. "Hostile" doesn't mean you growl at
the neighbors when they come near the boundary. It's definition,
which varies some by state, can be found on the web. But as in my
previous paragraph, the existing fence probably makes his possessoin
hostile.
I think hostile is tied in with the adverse part. The two words are
intended to convey the notion that the interlopers use prevents,
thwarts, or takes over the use of the land buy the real owner in a way
that is detrimental to the real owners interests. That such use is
actually "hostile", i.e. detrimental, harmful to the what the real
owner intended the land to be used for. Think of a sand and gravel
pit out in the boondocks. A owns the land but has done nothing with
it B comes along and start taking sand and gravel from it. A knows
about it be just lets it go on. That's what I would consider hostile
use along with open and notorious. Let that go on for 10 years and A
might find out the B now owns a gravel pit.
But I do agree that it's not cut and dried. If only because we've
only heard one side of the story. Very unlikely but perhaps both
neighbors gave the OP's predecessor a 50 year lease on the land, rent
paid in advance, which expires tomorrow.
All the owner needs to do is say "Hey, I see you've been mowing my
lawn. The darn contractor built the fence in the wrong spot. I was
going to have him move it but he said he'd rebate me $1000 bucks if I
left it where it is. So I did since I have plenty of space. You can
use it until I need to rebuild the fence someday." and things can go
like that forever with on adverse possession possible.

But like you said, and as with any of these kinds of situations, you
can never be sure what a judge might decide. For all we know there is
a ton of case law that covers this that would easily settle this if we
had a law library.
 
H

Harry K

That still doesn't necessarily make it adverse or hostile to the real

owners interest. The real owner starts with an interest in it, and it

was it would appear, his yard. For the neighbor to ALSO be using it

as "yard" is not necessarily hostile to the actual owner. The fence

might be worth a claim of exclusive use if it truly prevented the real

owner from getting to it IF HE WANTED TO but since it's most likely

not topped with barbed wire that could also be a questionable claim.











I think hostile is tied in with the adverse part. The two words are

intended to convey the notion that the interlopers use prevents,

thwarts, or takes over the use of the land buy the real owner in a way

that is detrimental to the real owners interests. That such use is

actually "hostile", i.e. detrimental, harmful to the what the real

owner intended the land to be used for. Think of a sand and gravel

pit out in the boondocks. A owns the land but has done nothing with

it B comes along and start taking sand and gravel from it. A knows

about it be just lets it go on. That's what I would consider hostile

use along with open and notorious. Let that go on for 10 years and A

might find out the B now owns a gravel pit.










All the owner needs to do is say "Hey, I see you've been mowing my

lawn. The darn contractor built the fence in the wrong spot. I was

going to have him move it but he said he'd rebate me $1000 bucks if I

left it where it is. So I did since I have plenty of space. You can

use it until I need to rebuild the fence someday." and things can go

like that forever with on adverse possession possible.
True, but any lawyer would tell the real owner to "put it in writing and renew it periodically" otherwise you wind up in court on a "he said, she said" basis.

<snip>

Harry K
 
H

Harry K

Let us assume a hypothetical situation in which you have been

maintaining property which meets the criteria for adverse possession as

given according the following statute:



http://www.oregonlaws.org/ors/105.620



Let us further assume that this is part of an urban residential

property, and which consists of about 1000 square feet, along two

property lines, formed by old fences a half-dozen feet from your plotted

property line.



Assume you have, for 20 years, maintained this property by mowing it as

needed whenever you mowed your real propety. Additionally, assume that

the neighbors on both affected sides are unaware of the discrepency, and

consider the fenceline to be the actual property line.



Assuming you just discovered this situation at a time in which you are

planning to build your own perimeter fence, would you, A.) build your

fence one the line of the existing fence, thus taking advantage of the

adverse possession to which you are legally entitled, or B.) build your

fence along your plotted property line?



Personally, I would choose option B, to both avoid future conflicts with

future property owners, as well as to not be a dick about it.



What are your thoughts?



Jon
 
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T

trader4

If I am listed as the owner, then I am getting the tax bill.

How would someone else be paying it?
In the case in question the party seeking to possibly make
use of adverse possession is not listed as the owner. The
present owner of the property, who presumably has a title
and deed showing they own the property next door is listed as the
owner and has been paying the taxes. The fact that a fence is
in the wrong place doesn't change that.
 
T

trader4

If I am listed as the owner, then I am getting the tax bill.

How would someone else be paying it?



If he's getting the tax bill, then it's already his in the

official records. If that's wrong, gonna be a heck of a struggle fixing it.
Who exactly are you referring to? The fact that the person here trying
to claim adverse possession is *not* getting a tax bill and *not* paying the taxes is precisely the point. I'll say it one more time. In some states,
part of the AP law specifically includes that to make such a claim, the
person must be paying the property taxes on the property he seeks
via AP, just as if he owned the property.
That seems entirely reasonable to me. If you own your own lot, you
pay taxes on it. To claim that you own part of the neighbor next door's
lot when the neighbor has been paying taxes on it, not you, seems unreasonable
to me. And apparently to some states too. If you think you own it,
then why aren't you paying taxes on it?

Let's say there is a vacant house on a lot. The owner walks away
from it. A squatter occupies the house and starts paying the property taxes.
After the required number of years, he can claim it via AP. Not
saying all states work that way, but some do. And I'd be curious to
see the case law regarding the issue of tax payments and how courts
have treated it in other states.

Also, some states have de minimus exclusions, specifically covering
fences placed a few feet off the correct boundary, and similar
common occurances, where you can't claim AP.
 
T

trader4

That's one case, if he agrees.



If he doesn't agree, if he says nothing but still permits it, then its

permitted but it may also be hostile.
Nonsense. The whole concept of if it was permitted use is in relation
to it being hostile or not. It's not hostile possession if the
rightful owner *permitted* it. If the owner gave permission, then
it's not hostile and you have no claim of AP.


If permission and no hostility were locked together. if they were the

same concept, then they wouldn't be listed separately in the Eunuch

rule, or some statutes.
They are linked together, the concept is the same.
How some statutes list them doesn't matter. What you're arguing
makes no sense. It's backwards. We have a guy trying to make
an adverse possession claim, call him Joe, against property owner
B. You're saying that if property owner B doesn't give permission
to Joe, that because he sees Joe use his property and does nothing,
that he has then permitted Joe to use it. Well, then AP would not
apply and Joe has not claim, because the use was permitted.

The whole concept of permitted or not is that if property owner B
gives permission, then Joe has no AP claim period. An example would
be property owner B agrees to allow Joe to park his truck on his
property. Then he has given permission, it's permitted, and Joe
has no AP claim.




Permission doesn't require any thoughts or awareness on the part of

the actual owner. He doesn't have to *give* permission.
Wrong.


If he sees
or could see what's going on and does nothing, that's permission.
Wrong. Because if the use is permitted, goodbye adverse possession.
It cannot be permitted and hostile. If the neighbor sees or could have
seen what's going on, that's part of the open and notorious part and
has nothing to do with permission.




Or
put more accurately, the actions by the adverse possessor are

permitted. It's non-permission that takes at least a little effort on

his part.







I don't expect him to. I'm giving him permission. He then has it

whether he wants it or not. The lawyers on the legal ng agreed that

giving permission is unilateral.
That's reassuing....

Here is a differing opinion:

http://www.nolo.com/legal-encyclopedia/adverse-possession-trespassers-become-owners-46934.html

•Give written permission to someone to use your land, and get their written acknowledgement. For example, you could give someone permission to park on your land, use a shortcut across your property, or to garden or grow crops. This can not only defeat adverse possession claims, but also a claim toan easement (use permit) across your property.



If you tell your kid, You can go out to play. You don't have to be

back until 6, he has permission to go out and not come back until 6

whether he wants to go out or not.
I don't know which position is right. Maybe you can do it
unilateraly. But I do know that letting your kid go out and play
and an agreement or license are two very different things.

And here's another reference on AP that says to get an
actual agreement:

http://www.pdhcenter.com/courses/l122/l122content.pdf

See page 6.

"One effective way to thwart a possible claim is by giving permission to use your land. If
Bill is out planting a garden in your backyard, treating it as his own land, step over and
say "Hello, you are on my property by a few feet, but that's okay." You don't have to
throw him off your property; simply claim it. Then put the permission in writing and
obtain an acknowledgment from Bill. The chain has been broken. He can tend that garden
for forty years and still never acquire a legal claim to your property if he has your
permission.
An example of written permission is shown below.
Agreement Granting Permission to Use Property
I, James Brown, owner of the property located at 123 Maple Terrace, Newark,N.J. give
my permission to Bill Warner to plant and tend a garden located on a five-foot strip of
my property bordering the east side of the property line. I reserve the right to revoke this
permission at any time.
___________________________ __________
James Brown date
I, Bill Warner, acknowledge that my use of this strip of land belonging to James Brown is
by permission only, and that the permission may be revoked at any time.
___________________________ __________
Bill Warner date
This type of agreement can be used to grant permission for parking, using ashortcut
across property or even growing crops. It not only can defeat adverse possession claims,
but also a claim to an easement across your property (See "Easements" below). When you
use such a written permission, be absolutely sure that the portion of your land being used
is described in enough detail so that it is easily identifiable."



I'd also add a good section relieving you of any responsibility for
any liability for injuries, damages, etc the person using your property
may incur. Let's say you give the neighbor your "unilateral license" to
screw around with those bushes on your property. He hires an uninsured
Mexican, who trips, cuts off his hand and then sues YOU.
 
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U

Unquestionably Confused

Who exactly are you referring to? The fact that the person here trying
to claim adverse possession is *not* getting a tax bill and *not* paying the taxes is precisely the point. I'll say it one more time. In some states,
part of the AP law specifically includes that to make such a claim, the
person must be paying the property taxes on the property he seeks
via AP, just as if he owned the property.
How about a citation? Show us the statute in one of those states that
requires it (payment of taxes).

You gave an example of a common law "test" as it were. Common law may
be the foundation of our laws but they have evolved over time and
statutes and case law are all that matter when you get down to it.

Once again if you have adjacent property owners who share a common,
LEGAL boundary line between their two properties and for whatever reason
one neighbor places a fence that encroaches upon the others' property
the land so "taken" by the encroaching party IS subject to claim by
adverse possession and there's no way that that party is going to be
paying taxes on the land. Assume both are deeded as exactly .5 acres.
Each pays taxes on that .5 acres however the guy who put his fence 5'
over on the others' land should be (under your theory)paying on .5023
acres and the wronged party (the actual owner of the land)is paying on
..4077 acres. I guarantee you that they are not.

Granted the laws are different in different states. In IL taxes does
not enter into the equation other than to prove, perhaps, that the
rightful owner has not abandoned the property. A deed by adverse
possession may still be had if the non-owner maintains or uses the land
as his own.
 

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