I'll start by saying we are consulting an attorney to see where we stand. We moved into our home 23 years ago and were told our garage was built on the property line and it was done with a variance.

Fast forward to yesterday we had our property surveyed because we want to put up a fence. The surveyor did his thing and it turns out we have five feet more in the back of our lot and two feet in the front of our lot, which the neighbors have mowed and considered theirs for 23 years. There is no existing fence or structure on the property in question.

So, does it sound like we may have lost that part of our property due to adverse possession?

quote:

So, does it sound like we may have lost that part of our property due to adverse possession?

Not an attorney but have had these issues. JALLEN will probably have a good response. The first question is what is the nature of your relationship with your neighbor. My attorney told me once that two farmers disputing thirty feet of property will work it out, but two suburban homewoners will take two inches to the Supreme Court. Being that my neighbor was contentious, a careful approach brought success. Good luck.

I only know Florida law but real property law is a pretty constipated discipline.

You're right to ascribe some significance to the fence - the possession must be adverse, usually in the sense that the other's claim to the property is obvious both in its nature and existence. Many jurisdictions require the other to pay taxes on the claimed property. I can't say you're safe, but mowing grass is pretty low on the adverse possession scale.

Did you get a survey when you moved in? Did the neighbors? It might be important to figure out whether this originated with a boundary dispute or just a misunderstanding (there's a similar doctrine called boundary by agreement).

quote:

Originally posted by ZSMICHAEL:

Not an attorney but have had these issues. JALLEN will probably have a good response. The first question is what is the nature of your relationship with your neighbor. My attorney told me once that two farmers disputing thirty feet of property will work it out, but two suburban homewoners will take two inches to the Supreme Court. Being that my neighbor was contentious, a careful approach brought success. Good luck.[/QUOTE]

Well, we are pretty rational people but they have been assholes in the past about the smallest things.

quote:

Originally posted by DaveL:
I only know Florida law but real property law is a pretty constipated discipline.

You're right to ascribe some significance to the fence - the possession must be adverse, usually in the sense that the other's claim to the property is obvious both in its nature and existence. Many jurisdictions require the other to pay taxes on the claimed property. I can't say you're safe, but mowing grass is pretty low on the adverse possession scale.

Did you get a survey when you moved in? Did the neighbors? It might be important to figure out whether this originated with a boundary dispute or just a misunderstanding (there's a similar doctrine called boundary by agreement).

No, we didn't get a survey when we moved in and neither did they. We took them at their word that they signed a variance to let the previous home owners build a garage on what they said was the correct property line.

That's probably good news. Don't sweat it and see what your attorney says.

quote:

Originally posted by DaveL:
That's probably good news. Don't sweat it and see what your attorney says.

OK, thank you.

What is the law regarding adverse possession in your state? In Whackyland, the period of posession must be 5 years continuous, plus payment of all taxes assessed against the property. This almost requires possession of the entire legal parcel rather than some fraction. Tax collectors will often cash the checks of whoever pays, the more the merrier!

Generally, adverse possession requires non-permissive use which is actual, open and notorious, exclusive, adverse, and continuous for the statutory period. If a claim to title by adverse possession is successful, title is acquired without compensation.

There are also other rights, less than ownership, such as a prescriptive easement which is the right to use the property of another which is openly carried on for the required period, typically 5 years. The distinction is use rather than possession, as a driveway, for example.

Needless to say, the facts and appearances can go all over the place.

It is custom in some states to have surveys upon each transfer. In other states that formality is omitted. You need to know where the corners are and have stakes or markers in place, or be at risk.

quote:

Originally posted by JALLEN:
What is the law regarding adverse possession in your state? In Whackyland, the period of posession must be 5 years continuous, plus payment of all taxes assessed against the property. This almost requires possession of the entire legal parcel rather than some fraction. Tax collectors will often cash the checks of whoever pays, the more the merrier!

Generally, adverse possession requires non-permissive use which is actual, open and notorious, exclusive, adverse, and continuous for the statutory period. If a claim to title by adverse possession is successful, title is acquired without compensation.

There are also other rights, less than ownership, such as a prescriptive easement which is the right to use the property of another which is openly carried on for the required period, typically 5 years. The distinction is use rather than possession, as a driveway, for example.

Needless to say, the facts and appearances can go all over the place.

It is custom in some states to have surveys upon each transfer. In other states that formality is omitted. You need to know where the corners are and have stakes or markers in place, or be at risk.

I live in Illinois and from what I've been reading we may be screwed, but I'm not an attorney and will be meeting with one. I did find this and it makes me worry.

http://statelaws.findlaw.com/i...possession-laws.html

Adverse possession is harder to accomplish than many think.

Talk to your lawyer, but . . .

quote:

Originally posted by jhe888:
Adverse possession is harder to accomplish than many think.

Talk to your lawyer, but . . .

Damn, now I'm worried, lol.

quote:

Originally posted by Killer:


I live in Illinois and from what I've been reading we may be screwed, but I'm not an attorney and will be meeting with one. I did find this and it makes me worry.

http://statelaws.findlaw.com/i...possession-laws.html

There are quite a few issues here. Exclusive possession, open and notorious, adverse. You can't be sneaky. Enclosing the land is a sign that you are exclusively entitled to possession for example.

It sounds like neither owner was in exclusive possession, adverse to the rest of the world, as the owner.

The exact particulars will tilt things one way or the other but were I to guess from the bare scenario, you will come up with an agreed boundary eventually, with more or less treasure expended.

Jhe is right. It's not as easy to do as it is to talk about.

I've recounted before the biggest boundary fiasco I was involved in. A man started selling 200' wide lots back in the '30's. The north boundary of his property was a public road, as was the south bondary, 2,000' to the south. Over the years, he sold 10 of them, each 200' wide. There was no map, and none was required in those days. I believe this was Rancho land, and the old surveys were, ahhh, informal.

One new owner in the early '70's had a survey done and it turned out there was only ~1,800' between the roads. That put the cat amongst the pigeons!

After several years of rather expensive wrangling, and chest thumping, we finally got everyone to resolve it on the lines of possession between each parcel. If there was a fence, some other marking of possession, where each neighbor had mowed to, hedges, cultivation, where they parked their trash can, etc. Aerial photos can be helpful in figuring out these facts.

You might also want to have the survey rechecked. Surveyors are human and make mistakes. Several years ago I also had a surveyor tell me my property was larger than I thought. I didn't believe him and had it rechecked. Sure enough, he was wrong; the old property lines were confirmed.

quote:

Originally posted by Tejas421:
You might also want to have the survey rechecked. Surveyors are human and make mistakes. Several years ago I also had a surveyor tell me my property was larger than I thought. I didn't believe him and had it rechecked. Sure enough, he was wrong; the old property lines were confirmed.

I guess that's a possibility.

What will that five feet in the back and two in the front get you?

And what will the lawyer get to get it for you?

What is this instrument you have referred to as a "variance?" Right now, I'm more worried about it than anything else. What is this document's content? Was it recorded?

Merely mowing the grass doesn't establish open and notorious possession sufficient to determine adverse possession within Illinois. The general time period for an adverse possession claim is 20 years under Illinois laws, but claimants may "tack" their possession period on to a prior owner so long as the possession remains uninterrupted.

Have the neighbors noticed the pins? I would point it out to them and see what they say.

I remember when I was younger the neighbors thought they owned about 20 feet of our property just because our lot was larger and theirs was tiny. They made a big stink about it and caused my parents grief. they had it surveyed and come to find out they were 5 feet on our side of the property line My dad moved the fence the next day.

quote:

Originally posted by XLT:
Have the neighbors noticed the pins? I would point it out to them and see what they say.

I remember when I was younger the neighbors thought they owned about 20 feet of our property just because our lot was larger and theirs was tiny. They made a big stink about it and caused my parents grief. they had it surveyed and come to find out they were 5 feet on our side of the property line My dad moved the fence the next day.

And rightly so!

Be careful! The only winners in land disputes are the land sharks! My sister had to fight for several years just to keep what was hers. The other land owner stressed to the point he had a heart attack!
Maybe talk to the adjoining neighbors, do a joint survey of the affected properties.
Years ago, land was sold by the buyer and seller pacing the boundry lines. Short verses tall people made a huge difference.

Best land advice ever given to me, "good fences make good neighbors ".

Well, the laws differ per state but I can tell you that in NC you can really get dorked by this.

We had a plot of land on the water that had one side that had low brush/small trees. Over the years a neighbor pulled up the survey markers and moved them over onto our property by 20 feet. (gave himself 20 feet of water property).

True, we could and should have watched the property closer but every time we checked, there were the markers!

Well, you would think that moving survey markers would be illegal (and it is) but someone HAS TO SEE THE PERSON DO IT. Otherwise, they just shrug and claim "it was always that way". (This is a big business for some people in NC). Intent to deceive doesn't seem to be a factor in the determination.

So we spent a lot of money fighting adverse possession in court and lost...

Here's my life lesson message: Fences make good neighbors.