DEAR BOB: How does adverse possession work? I have been using about 20 feet of the vacant lot next door for the last 14 years. I tried to contact the owners, but my letters were always returned unopened. –Pam C.
DEAR PAM: Adverse possession occurs when you occupy an entire property without the owner’s permission. The law says your occupancy must be “open, notorious (obvious), hostile, exclusive and continuous.” In addition, you must pay the property taxes. The number of years of hostile occupancy required varies by state. The shortest time is five years in California. One state requires up to 30 years.
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But a prescriptive easement can arise when you occupy just part of a property, such as a driveway or the 20 feet in your situation. The “open, notorious, hostile and continuous” requirements apply. However the hostile use need not be exclusive and you don’t have to pay the property taxes on the property. Again, the number of hostile occupancy years varies by state.
To perfect a claim for adverse possession or a prescriptive easement, the claimant must bring a quiet title lawsuit in the local court. The most common defense to such a lawsuit is the legal owner will say he gave the claimant permission to use the property. If the judge believes it, that defense will defeat the claim. For full details, please consult a local real estate attorney.
PROPERTY RECEIVER CAN DENY CLAIM
DEAR BOB: When my sister sold her property, she carried back an interest-only first mortgage at 20 percent interest with a balloon payment due in 12 months. The buyer paid for only four months and is now in receivership. What should she do? Is there a time limit to file her claim? Does she need a real estate lawyer? –Roselyn S.
DEAR ROSELYN: I am shocked at that outrageous 20 percent interest rate. Your sister should hire a real estate attorney to file a claim with the property receiver. But I highly doubt she will get paid that unconscionable interest rate.
NO WILL AND POOR WORDING ON DEED LEADS TO PROBATE COURT
DEAR BOB: My husband passed away last year without a will. We bought land from my mother and built a house on it. She signed the deed and recorded it at the court house. It included my name, a married person, and my husband’s name. Now the title company tells me this is automatically a tenant-in-common deed. I don’t know where his kids are from his first marriage. But I want to refinance the mortgage. What should I do? –Dona H.
DEAR DONA: Because your husband died without a will, that means he died “intestate” so the state law will determine who inherited his assets. The local probate court will decide who inherited his assets.
From your description of that poorly worded deed, it appears a tenancy-in-common with you was created. You presumably own 50 percent and his estate owns 50 percent of the property.
If you had intended to hold title as joint tenants with right of survivorship, or some other method, it should have been stated on the deed. Until you straighten out the title, you alone cannot refinance the mortgage because you lack full title. For details, please consult a local probate attorney.
The new Robert Bruss special report, “How to Profit from Lease-Options (Rent to Own) If You are a Property Buyer, Seller or Realty Agent,” is now available for $5 from Robert Bruss, 251 Park Road, Burlingame, Calif., 94010, or by credit card at 1-800-736-1736 or instant Internet delivery at www.BobBruss.com. Questions for this column are welcome at either address.
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