Id just move the fence REGARDLESS

Posted by John T on May 02, 2012 at 08:56:06 from (216.249.82.117):

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

Okay Nancy you asked, so here are my still professional, although totally unresearched in your state and free opinions, which are therefore, worth just what you paid NOTHING!!!!!!!!!!! Not having researched the commom or codified law of adverse posession in your state and not having reviewed the relevant documents this "opinion" isnt worth much more if any versus a pure lay opinion or hearing what Billy Bob or the know it all brother in law has to say about this lol LAWYERS LOVE DISCLAIMERS WE CANT HELP OURSELVES

1) To start with, and regardless of valid instruments of record (Deeds, Surveys, Neighbor Agreements), by which as a strict matter of law as Dean noted you "should" prevail, ITS ALWAYS A RISK IN MY "PROFESSIONAL OPINION" (perhaps very low with the documentation you reported) TO SIT BY AND LET A NEIGHBOR UTILIZE YOUR LAND AND TREAT AS IF IT WERE HIS OWN...i.e. if he openly in your face uses and mows and treats the fence as the boundary and you allow it !!!

2) The law of "adverse posession" is not so much to reward a squatter as it is to impose an affirmative duty on a landowner to exercise due diligence and NOT sit on his rights for a statutory period (10 to 20 years) and only long after go crying to the Court for relief. IE if someone is making use of and treating your land as his own BRING AN ACTION FOR TRESPASS instead of sitting idle and letting it take place 10 to 20 years, because if you do, he might prevail in an action for adverse posession and that land be judicially declared his. AND THIS CAN HAPPEN even if you have a hundred deeds proving it was your land and where the deeded boundary was. The boundary or deeds or agreements isnt so much the issue, the issue in adverse posession is that you sat on your rights and let another run rough shod over you for 10 or 20 years and didnt do anything SO THE COURTS ARENT GONNA HELP YOU NOW

3) There are a few "end runs" around adverse posession such as the neighbors use cant be adverse IF ITS NOT HOSTILE IE YOU GIVE HIM EXPRESS PERMISSION TO MOW THERE ETC. To prevail in an action for adverse posession (as I recall from law school no warranty) the neighbors use must be Hostile, Open, Continuous, Exclusive, Adverse and Notorious so if its NOT adverse and Notorious the neighbors action should fail. Ive seen people write letters or draft agreements to the effect we realize where the boundary is but Im ALLOWING you its use regardless and those may be !!!! viable legal methods to avoid adverse posession BUT I STILL DONT LIKE NOR RECOMMEND THEM............

4) SOOOOOO I have to agree with Dean the documents you report "should" provide you a good legal defense to protect you AS A STRICT MATTER OF LAW...But none of us here, lay or professional, get to make that call ONLY A COURT

BOTTOM LINE yeah the duly recored documents you reported likely would result in defending you against a claim of adverse posession especially if the neighbors use was NOT adverse as I discussed above...

HOWEVER MY BEST FREE PROFESSIONAL LEGAL ADVICE IS TO JUST MOVE THE FENCE TO AVOID ALLLLLLL THESE ISSUES AND POTENTIAL COSTS AND ALL THE ASSOCIATED RISKS DOWN THE ROAD its gotta be cheaper to move the fence then a lawsuit down the road!!! even if you win (likely would with what you have and you negate the adverse requirement) or loose it. And I still say that regardless how many recorded deeds and agreements you have especially when theres been a change in ownership.

My next to last free advice is DONT GO "TALK" TO THE NEIGHBOR AS YOU MENTIONED. You need to establish and preserve crucial admissible evidence to avoid any he said she said fact disputes down the road. That means certified USPS Mailed letters with return green card receipts. NOTE Im not saying dont neighborly and friendly go discuss and inform and tell him the you think the fence should be moved, Im ONLY saying if things start to get heated or contested, Id prefer to go in Court with admissilbe hard paper trail evidence instead of "well we talked aobut it and he said...." Get my point??? Also look down the road and your having to tell your new buyer wellllllllll our land really goes beyond that fence line BUT ITS STILL OURS AND WE HAVE THESE PIECES OF PAPER TO PROVE IT woooooooooooooooo !!!!!!!!!!!!!

My last free advice IS TO CONSULT LOCAL COMPETENT TRAINED PROFESSIONAL OPINIONS instead of mine or anyone here or Billy Bob or the Brother in Law or the "know it all" types theres just too much at risk to hang your hat on other then professional advice in my "opinion" so like Fox News we report you decide.

Best wishes n God Bless. I always enjoy your comments here

PS I defer to Mike and Dean they may be more current, knowledgeable and experienced then myself IM SEMI RETIRED REMEMBER

John T Country Lawyer

Replies:

• Re: Id just move the fence REGARDLESS Mike (WA) 12:38:58 05/02/12 (1)
  • Re: Id just move the fence REGARDLESS John T 13:34:39 05/02/12 (0)

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