Resolving property line disputes

What it takes to win an adverse possession claim

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.

DEAR BENNY: I purchased a home with my mother more than 10 years ago in which we both resided, but I eventually moved out. A few years afterward it became very difficult for her to maintain the mortgage and homeowners association fees along with her high medical bills. To help out, we did a reverse mortgage on the property. My mother (age 79) qualified for the reverse mortgage, but in order for it to move forward I needed to be removed as part owner of the home because I wasn’t 62.

In the end, the home was refinanced into a reverse mortgage, and I was removed as part owner of the property. I receive no proceeds from the transaction. My mom and I were supposed to have done a will but we never got around to doing it prior to her recent passing. I do have other siblings; therefore, my question to you is: Can I recoup the expenditures for homeowners association fees, taxes and other things that were paid by me after the reverse mortgage? –John

DEAR JOHN: Have you discussed this with your siblings? I know, of course, that no one wants to give away money, but if you really helped your mother by making those payments, your brothers/sisters should be willing to reimburse you from the proceeds of the sale of the house — assuming, of course, that there will be a surplus. All too often, people who obtain reverse mortgages find that the monthly interest combined with the depreciation of the house provides no equity when the house is ultimately sold.

If your siblings reject your proposal, you can file suit against them. However, in all states there exists a statute of limitations. This means that after a certain number of years have passed (the number is set by the state legislature) you can no longer bring a lawsuit. Typically, many such statutes bar litigation after three years, but your state may have a different number.

You should discuss this with an attorney. Litigation is time consuming, expensive and always uncertain. In the United States, we follow what is known as the "American Rule" on legal fees. This means that for most lawsuits, each side pays its own attorney. (In England, it is different, in that the loser pays the winner’s legal fees, as well as its own).

There are a few exceptions. If there is a statute on the books that provides attorney fees to the prevailing party (such as a consumer protection law), or if there is a provision on a contract that the prevailing party will recover legal fees, then a judge has the authority to award legal fees to the winner. But not all judges will award those fees even if the authority is there. It is always up to the complete discretion of the court.

One additional exception to the American Rule is that a judge can award legal fees if it is determined that one party to the lawsuit should be punished for what he or she did. However, this will rarely be used: Just because you think your defendant should be penalized for what he/she did does not mean that the judge will agree with you.

Bottom line: Think twice about filing that lawsuit.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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