Resolving property line disputes | Real Estate | South Philly Review

What it takesr to win an adverse possession claim

Benny Kass
Inman News?

DEAR BENNY: My husband and I have owned our home since 1973. At the time we purchased the home, there was an existing fence between our neighbor's house and ours that we had assumed was on the property line.

Our current neighbors moved into their house in 2000. They recently had a "topographic survey" of their property performed for a proposed landscaping project. The survey shows that the fence is not on the property line, but that it extends in the range of approximately 2-4 feet at various points onto their side of the property line.

In response to this information, we searched our old records and found a "topographic site" map that was prepared for us in 1988 when we replaced a deck near that property line. According to the 1988 map, the fence extends approximately 2 feet onto their side of the property line in places.

Frankly, we didn't notice the discrepancy in 1988, probably because our 1988 project was contained well within the property line, and the fence and property line were not an issue. Both maps have the statement that "this is not a boundary survey" written on them.

Now the neighbors want some of their property back. The length of the fence is approximately 200 feet. They want to move a 50-foot portion in the middle of the fence, but near our house, back to the property line and leave the remainder of the fence as is. They also want us to sign a document acknowledging that the 150 or so feet of the remaining fence is on their property and they will, in turn, grant us an easement to use that 2- to 4-foot portion.

Our question is: What are their rights and what are our rights? Due to the length of time involved, do we own the extra 2-4 feet by virtue of adverse possession? --Linda

DEAR LINDA: My answer will have to be very general, because each state has different laws regarding adverse possession. In fact, I understand that some states have actually by law rejected the idea.

First, let's define that concept. The theory of the doctrine of adverse possession is that the person who holds or uses property adversely against the rightful owner should ultimately be entitled to own that property. But not every possession of land will turn into "fee simple" ownership. As the name of the doctrine implies, the possession must be adverse, hostile, actual, notorious, exclusive, continuous and under claim of right.

Needless to say, these sound like highly complex legal concepts, and to some extent they are. However, in the words of one judge, "The person claiming the property by adverse possession must unfurl his flag on the land and keep it flying so that the owner may see, if he wishes, that an enemy has invaded his domain and planted the flag of conquest."

I don't know where your house is located. The time required to prevail in a lawsuit for adverse possession differs from state to state. For example, in Maryland the term is 20 years, while in the District of Columbia and Virginia it is only 15 years.

But as I wrote earlier, litigation is time consuming, expensive and always uncertain. Talk with an attorney about your situation. The burden to prove that you meet the tests will fall upon you, although the existence of the fence will be very favorable in your case.

Your neighbor has made you an offer, which you should seriously consider. If you don't like all of the terms, counter with your own ideas. Many people would prefer to obtain a perpetual easement in the area in question rather than spend a year or two in court to get that same area of land.

DEAR BENNY: I paid off my mortgage in early October and now it's December and I have not heard from the bank. I guess I'll call them back after the first of the year if I've heard nothing by then. --Jack

DEAR JACK: First, make sure you have proof that you paid off your mortgage entirely. Lenders charge interest on a daily basis, and that interest will keep accruing until the bank/lender gets the entire amount. Do you have a receipt proving your payment?

When you obtain a mortgage (also called a deed of trust) it will be recorded among the land records in the county or city where your property is located. Once the mortgage has been paid off, a release of that loan must then be recorded in that same land records office. Different states use different forms -- some are called a release or a certificate of satisfaction. But the bottom line is: Some documents must be recorded showing the world that your loan has been paid off.

From my experience, lenders take one of two options: Some lenders will actually arrange to have a release recorded, while others will send the promissory note and deed of trust marked "paid and canceled" back to the property owner with instructions that the property owner must arrange to have the release recorded.

You should check with the bank as to what procedure it uses. And keep bugging the bank. Don't let this slip. You don't want to have to scramble to get this done down the road when you are trying to sell your house. At that time, your lender may not even be in business, and that will be a major hassle for you.

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