ProfDale Property Video 3 - Conditions that inhibit or prevent Adverse Possession

[@traceystock7352]

We live in a rural area and new neighbors behave like they are aware of adverse possession laws. They seem to want the area of our property that is along a stream and woods that is close to the property line and their house. We don't want to lose it. They had some encroachment from the previous owner. I am told different things by different lawyers in my state. A few said they don't have a claim because the encroachments were not visible and we have since relocated them to their side of the boundary. We also fenced much of the boundary with no trespass signs. We actually offered them permission but they did not commit to acknowledging and we caught them lying about the encroachments. Besides my fence, now that the encroachments are on their land, what else can we do before our time period is up and they can file quiet title? It's a wooded area and not really good for building.

[@fredmertzful]

Let's assume that the downspouts were buried by your neighbor's predecessors in title. If they have been there long enough (you didn't say) and meet the requirements for adverse possession, they might already have accomplished the creation of a new AP title. But do they meet those requirements? There are several issues. First, are they possession? They might be considered merely a minor trespass, sufficient to create at most a prescriptive easement but not to cause an AP title to arise. I think this is quite likely. Second, are they open and notorious? The fact that you actually know about them doesn't answer this question. Would an objective observer viewing the surface of the ground become aware of them? If their only surface outlet is on the neighboring property, then the answer may well be no. If they are not open and notorious, they won't give rise to either title by AP or a prescriptive easement. Those are some of the issues you will need to consider and analyze.

[@traceystock7352]

@@fredmertzful Thank you so much for your response. The neighboring home is not old enough to qualify for AP.

[@Smart802]

File in court don’t waste time. Get resurveyed

[@traceystock7352]

@@Smart802 file what in court? I dont even know if they are going to do anything. They might though. They no longer have anything on my property.

[@fredmertzful]

At this point there's nothing to file. The neighbors have taken no action to claim anything, and may never do so. Filing a suit against them will, in effect force them to make a claim if they have any inclination at all to do so. It's much better to let sleeping dogs lie, particularly when their potential AP claim has now been extinguished. As for a resurvey -- if there's no uncertainty as to the location of the boundary or the drains, it's unnecessary and a waste of money.

[@donitamann5799]

Wealth of information . Thank you.

[@Vipenstrike]

Very informative. Thank you!

[@donmulder8061]

I'm sorry if these questions come across as stupid but would appreciate any additional clarity from the Professor or anyone who has some knowledge or experience in this. 1. Regarding Part One of the video. If person A is true owner of parcel A, and Person B is true owner of the adjacent Parcel B (for simplicity), will Person A placing their Parcel A into a Life or Irrevocable Trust for transfer to a relative upon their death make it more difficult or time consuming for adjacent neighbor Person B to achieve an adverse possession claim for Parcel A? In other words, if I put my residential property into a living trust for my nephew, will it frustrate a neighbor's attempt to take title to any portion or all of my property through adverse possession? 2. Regarding Part Two of the video. Does a property owner having a mortgage for their residential property make it more difficult or more time consuming to successfully complete an adverse possession claim of that property? How about if that mortgage is a Veteran's Administration Loan? Or if the property owner is a disabled veteran holding a VA loan? I thought the video was very clear but realize this area is not my expertise. Thanks.

[@fredmertzful]

The answer to both of your questions is the same. Putting the property in trust, or placing a mortgage on it, won't have any protective benefit against potential adverse possession by a neighbor. In the case of the mortgage, if it is placed on the property before the AP commences, the adverse possessor will probably acquire title subject to the mortgage -- but he or she will still have title (assuming their adverse possession meets all of the legal requirements, of course).

[@donmulder8061]

@@fredmertzful Sir, I have another related question. If Person A, the true owner, has some portion of their land that is not developable, but of potential environmental value, would placing that land into a conservation easement at least help the true owner overcome an adverse possession attempt of that land?

[@GURLCAN]

Does it matter what type of Mental Illness?

[@profdalespropertyvideos185]

No, it doesn't matter about the details of the mental illness, presumably provided that it is serious enough to deprive the owner of legal capacity. Also, the mental incapacity need not necessarily be adjudicated in order to count for AP disability purposes.

[@THE-SPIRIT-S-ISM]

What Happens If The Land Is Put Up For Private Auction Or Or Can The Land Be Put Up For Private Auction And And It Goes To A Different Owner/ Is It The Same Regarding The 20 Year s And Another 20 Years Of The Example. Does It Matter If A Quite Title Action Is Filed Or Not Regarding The Elements/ Virtue There Of The Adverse Possession.... .... 20 Years 20 Years

[@THE-SPIRIT-S-ISM]

Does It Matter The Elements For Example The Land Has A Back Parking Lot And And Theres No Chains And There Was A Chain There Before And There Places To Put New Chains But The Owner Or Someone Took The Chains Off Or It Just Open And Of A Closed Business/ All Elements Are Completed Regarding The Building Or Or Closed Business.

[@THE-SPIRIT-S-ISM]

In What Cases Can A Owner/ Owner s Go To Jail/ Sued And And By The Adverse Possesser Regarding The Owner/ Owners Land Being Adversely Possessed Regarding Title

[@reemahachem605]

What if the state applies title mortgage theory where the mortgagee obtains a title of the land? I mean, it is understandable that, under lien mortgage theory, the mortgagee will not hold a title of the land before initiating foreclosures against the true owner who declined on his mortgage.

[@profdalespropertyvideos185]

The point being made in the video is that if the state follows the title theory of mortgages, when one joint tenant grants a mortgage on his or her interest, the result is the same as if that joint tenant had executed and delivered a deed of his or her interest -- namely, that it severs the joint tenancy, converting it into a tenancy in common. On the other hand, if the state follows the lien theory of mortgages, execution of a mortgage by one joint tenant will sever the joint tenancy. For purposes of foreclosure procedure, it typically makes little or no difference whether the state follows the lien theory or the title theory of mortgages. But this video doesn't cover foreclosure procedure, which in itself involves a complex set of issues.

[@profdalespropertyvideos185]

The foregoing point is made in Video 17 - Severance of joint tenancies. For purposes of adverse possession, it probably makes no difference at all whether the state follows the lien theory or the title theory of mortgages. Either way, if there's already a mortgage on the land when the Adverse Possessor goes into possession, the Adverse Possessor will (by staying in possession long enough) acquire title, but subject to the mortgage.

[@nastypupp]

Thank u, very good info. Do u give private consultations?

[@fredmertzful]

No, I'm not in practice. Sorry. You need a real attorney who is licensed in your jurisdiction.