Adverse Possession

mdkuder · Sep 12, 2006

A B.S. law to legally steal property. I have been in a lawsuit over property that my father bought over 20 years ago. When I was younger we ran a few cows on this 6 acres where two of the existing fences were good and we rebuilt the other two. Well he hasn’t had cows for some time now so he sold ½ of the property to me an the other to my brother. In 2001 I moved onto the previously unoccupied property, built a shop added a fence dividing the front ½ for my dogs to roam. In early 2003 I was part of a layoff so I had some free time on my hands. I was line trimming the fence and my neighbor wife stops me and during the conversation I stated that I was in the process of getting the land surveyed due to the fact that the fence dividing our properties was skewed toward my land from front to back. She acknowledge that and played her part to a T. She proceeded to plant grapes on the questioned property with intent IMO. Well the time came in May 2005 where I could afford to build the 660 feet of fence and pay the surveyors to come out. I informed them of this and was met with confrontation from the start, so I knew something was up. Anyway we had the surveyors out and found that the fence is over on us 6 feet in the front and 40 feet in the back approximately 1/3 of an acre. I stopped to let them know of our findings and was greeted friendly, after letting her know what was to be done she went from good to evil and ordered up off her property. A year and a Half later we finally settled out of court with me loosing ½ of that land to them claiming the land through “ADVERSE POSSESSION”. Which considering their tactics is B.S. but we had already spent $1500 for an attorney and other legal fees just to keep land we already own. SO BEWARE WHEN BUYING ANY PROPERTY AND MAKE SURE IT HAS BEEN SURVEYED, THE FENCES ARE IN THE PROPER PLACES AND THE TITLE IS CLEAR!

oldguy · Sep 12, 2006

Did they move or remove your fencing? If so that is really a bad court decision. I would think by fencing it origonally you had not abandonned it. I also thought the time frame of abandonment and adverse possesion was in the frame of 20 years not just a few- my reason for thinking this is that at a previous home I owned the city once had n alley at the back of the property which became landlocked. When I bought the home the homeowner acknowledged that the back 40 feet of property was not mine but he had been planting a garden there for the past 15 years in order to claim it. I continued the garden for another 5 years at which time I claimed it as mine and was granted ownership.

mtk · Sep 12, 2006

Methinks you needed a better attorney.

mdkuder · Sep 12, 2006

This fence was existing when my father bought the property and has been there at least 25 years. We settlement conference which is out of court with a judge as a mediator. The people have lived there 12 years and given they have mowed the land the judge said that the would probably win the case, even though in Oklahoma it's 15 years for adverse possession. These people don't even go outdoors other than to mow and rarely tend to their grapes, which they have plenty of other land to plant them on. Like I said above their action was deliberate, but it is very difficult to prove that.

mdkuder · Sep 12, 2006

mtk said:
Methinks you needed a better attorney.

I had already spent $1500 to keep the 1/6 of an acre they didn't get, so much for building a fence. I'm going to put up a single strand of barbed wire to be the new fence line. Ha

mx547 · Sep 12, 2006

deliberate actions do not extinguish adverse possession. in fact, it's the converse. the theory behind adverse possession is that land used is better than land wasted. i believe it to be wrong and unjust but it is the law. pm me and let me know who your attorney was.

mtk · Sep 12, 2006

PM him and get some better legal advice.

Unless the land is worth a whole lot less than $1500, you're crazy to just roll over and take it.

mx547 · Sep 12, 2006

why didn't you hire us to do your survey?

actually, i think the time period would have ended at the moment you told her that the fence was in the wrong place. apparently, the mediator determined that the requirements for adverse possession had already been met. are the previous adjoining land owners still living in the area? if you could get them to state that they were aware that the fence was incorrect, it may help your case if you decide to continue it.

i had to testify in a case where two different surveys overlapped, causing a building to be over the property line. the judge split the difference, just as he did in your case. i also believe that to be the wrong way to settle disputes, but historically around here, that is often the way they do it. he may have been the same judge that you had for a mediator.

bsmith · Sep 12, 2006

I agree it's not right, but the fence was there when your Dad bought and the fence was there when they bought. Now in 2003 you want to have it surveyed for accuracy. I'd say this should have been up to your father in 86. However he most likely wasn't worried about loosing a small amount like that because he had 20 acres, you however only having 10 feel the lose of 40 feet.

I've bought a 7 acre peice listed as 7 Mol(more of less), the fences have been used as the property line prior to my owning it. I then bought 52 acres listed as MoL. Which If I survey might find I'm on the losing end, so I don't survey!

Some of the issues are the quality of the surveyor, maybe 60 years ago the equipment and corners were not as good as today! They were working woth older equipment on a much larger scale. Now with the smaller pieces you can see they are not square.

mdkuder · Sep 13, 2006

Well rather than spend anymore money I settled. With the money I saved I'm adding a similar vent to the south end of my house like this one in Salt Lake City!

robwbright · Sep 13, 2006

The length of time necessary depends on the state. For example, West Virginia is 10 years, Ohio is 21 years.

The theory behind the law is that if you don't care enough to actually know what property you own for a decade or two, then you don't own it any more. Possession is 9/10ths of the law. The law developed out of squatter's rights and homesteading - which you may have appreciated 150-200 years ago when some people owned 10,000 acre tracts of land.

http://www.state.wv.us/wvsca/jury/adverse.htm

One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove by a preponderance of the evidence:

(1) That he has held the tract adversely or hostilely for a period of ten years;
(2) That the possession has been actual;
(3) That the possession has been open and notorious;
(4) That possession has been exclusive;
(5) That possession has been continuous;
(6) That possession has been under claim of title or color of title.

If I understand the situation, neither you nor your father knew the actual extent of your property for more than 20 years . . .?

You should NEVER buy property without a survey and at least a 40 year title search. Some people use 60 or 80 years just to be sure. If the person who is buying property has the title search and survey done, the attorney would have likely warned of any adverse possession problems with the property.

Of course, the government Courts established this doctrine, but they do not allow it to be applied to government property.

robwbright · Sep 13, 2006

BTW, my office just had a trial on this and collateral issues yesterday.

XRpredator · Sep 13, 2006

mdkuder said:
Well rather than spend anymore money I settled. With the money I saved I'm adding a similar vent to the south end of my house like this one in Salt Lake City!

Beautiful.

mdkuder · Sep 13, 2006

We never noticed the fence being skewed until I moved onto the property. Being honest law abiding citizens we didn't think those fine people would do this, I know I wouldn't have. Live and learn!

tnrider · Sep 14, 2006

how long does it take in tennessee. i think i will start cutting my neighbor's fields for free and then in x-years, i can take it as mine. after all, everyone will see me caring for it!

mdkuder · Sep 14, 2006

Nice, this is what I hate about the news giving out information that can be used by people with questionable ethics. "Jeeze I'm and idiot" Tommy Boy

mg89 · Sep 14, 2006

That sucks, I would hate to lose land

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