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Re: OT/ adverse possession question


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Posted by Mike (WA) on May 02, 2012 at 08:32:14 from (69.10.196.49):

In Reply to: OT/ adverse possession question posted by Nancy Howell on May 02, 2012 at 06:36:55:

Ordinarily, recording the document acknowledging that the fence was not the property line would cover you- it would convert neighbor's use of your land to "permissive", and until you withdrew your permission, the time period for adverse possession would not have begun.

But what bothers me here is that a new fence was built, and was not built on the line. There's a good argument to be made that the construction of the new fence was "adverse" to your interests, in that you could (should) have insisted it be put on the actual property line- so at that time, neighbor began to "adversely possess" your land.

If neighbor rebuilt the fence without your knowledge, it actually bolsters his position, believe it or not- because the basis of the adverse possession doctrine is that a property owner should not "sit on his rights", and not knowing what is going on with the property is indicative of that.

Was the new fence built less than the adverse possession time (10 years in my state) ago? If so, you should be OK, if you now move it to the property line.

The other consideration is, is it be worthwhile to even worry about it? If yours a residential rental with a lot of grass to mow, and no other real need for the 8 feet, you might just consider deeding it to him, at his expense, of course. Not all issues are worth fighting over, but its your call, of course.

My long-distance advice, in a jurisdiction whose laws I'm not familiar with, is to move the fence ASAP. If neighbor objects, show him the document that was recorded, and say you're just moving the fence to correct the situation. Let him start the legal action, if he's so inclined.

He should have been made aware of the recorded document when he bought the property, and if he was not, then he has an action against the title company that wrote the title insurance, for money damages.


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