Mom’s lived the same place for 35 years. She has a corner lot, a rock wall at the non-corner boundary, then an empty lot, then a neighbor. Came home the other day to find stakes set a few feet onto her side of the rock wall. Look to be set there by a realtor, not a surveyor. The neighbor on the other side found his surveyor pins and measured to Mom’s lot from there, and thinks the realtor was wrong. Mom doesn’t know where her pins are, but swears that late-Dad would not have put a rock wall where it didn’t belong, especially by 3′ or 4′. She called realtor, and their position was that they put the stakes at the right place, and if she wanted to challenge it, she had to hire a surveyor and prove them wrong. Fixed income and all that, she doesn’t wanna spend $500 to prove that her land is hers.
What are some of the different ways of thinking this out? Any good options beyond paying for a survey?
Replies
How good is her relationship with the current owner? maybe she can work something out with them? or is the current owner the realtor trying to sell the empty lot?
If it were me, I'd rip the stakes out of MY yard, and tell the realtor that he/she needed to call the survey in, shouldn't it be there responsibility anyway?
and besides all that what can the realator do if she does pull the steaks?
If you've cut your hair.........
Get the plot plan/deed, whatever has the measurements on it of her and the neighbors property. Get the realtor and measure it off the neighbors pins. Should convince them that to challenge, they would need to hire the surveyor. This worked on a past property line dispute for a customer of mine.
Best of luck.
A great place for Information, Comraderie, and a sucker punch.
Remodeling Contractor just outside the Glass City.
Quittin' Time
Pull the stakes & throw them over where they belong. Tell the realtor if they come over on her lot again they will be arrested for trespassing. In Ohio the buyer or seller of the land has to pay for a survey from a surveyor. I would guess the same applies where you are. They have to pay for the survey, not your mom. The realtor sounds like a sleaze ball. Good luck & keep us posted on what happens
I don't know what state your mom lives in, but in Michigan she would own that property even if the wall was placed in the wrong spot. It's called adverse possession, meaning that if a property owner uses the property of another owner without permission for a period of time (I think it's seven years in MI) then they become the owner of the property. Clearly your mom has established possession of that property and I think she should throw the stakes over the wall and tell the real estate agent to stay away.
in Michigan she would own that property even if the wall was placed in the wrong spot. It's called adverse possession, meaning that if a property owner uses the property of another owner without permission for a period of time (I think it's seven years in MI) then they become the owner of the property.
I am in Michigan and have never heard of such thing. Can you tell me what Michigan statute says that? I'd like to look it up and read it.
DG/Builder
This is from Black's Law Dictionary regarding Adverse Possession.
I'm not sure if it is exactly like this everywhere in the country but with slight tweaking I believe that it is. It is also my understanding that the possession must take on a considerable amount of practicality. For instance, ocaissionally cutting timber, or cutting grass may not hold up. In addition, to gain title the adverse possessor must bring suit in court to evict the title holder, this is where the case is won. A judge decides the merits and orders the title to the winner. Obviously the choice of attorney is key. One who is wise in the ways of boundary law is the best choice.
Adverse Possession: (from Black’s Dictionary)
Must have proof of non-permissive use that is:
1. Actual
a. Actual possession with intent to hold property in exclusion to all others and is denoted by exercise of acts of dominion over the land, including making ordinary use and taking ordinary profits.
b. Real; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible.
2. Open and notorious
a. Acts sufficient to alert owner of a claim to his land which may ripen into title.
b. Patent; visible; apparent; notorious; exposed to public view; not clandestine; not closed, settled, fixed, or terminated.
c. Notorious: generally known and talked of; well or widely known; forming a part of common knowledge, or universally recognized.
3. Exclusive
a. Appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole.
4. Adverse
b. Occupant does not recognize authority in the owner to either prevent or permit his continuing possession of property.
c. Possession is not made in subordination to owners rights.
d. Possession is not wrongful to owner.
e. Possession is Open and notorious.
5. Continuous (I've added this from my own education)
6. For statuatory time period (10 years in WV)
Depends on intent of occupant to claim and hold real property in opposition to all the world
Embodies the idea that owner has knowledge of the assertion of ownership by the occupant.
I can damn sure tell that you're a Texas surveyor with a name like "Shady." :-)
I have a question regarding this situation, This past winter did a historic home remodel in Allegan MI, HO has a garage in the back yard garage door facing her driveway, power run into her breaker box and the jackazz that lives behind the garage on another street says its his garage and she can use it for a nominal fee of course. How in the world can this guy claim that he owns this garage?
Need more info. Common lot or separate? Does the HO have reciepts or deeds containing the garage and house? There are as many different laws on posession as there are states, so all I can do is give you a thumbnail of an answer.
I talked with the HO today she said that years ago in the house she lives in and the house behind the garage in question were family members and allowed the one house to build a garage on their property but when sold it stays with them. Hope I made any sense explaining that. Thanks for the reply
Shady's description looks like I understand the law. I'm not a lawyer, but in the past I worked for a business that owned a large number of parcels throughout the state of MI and on at least one occasion they lost a small parcel because someone had used it for years (they built a garage on it and it was not discovered or challenged within the time limits). The company was a railroad, and therefore owned a lot of land and abandoned right-of-way. On another occasion they made a donation of land for a rail trail and found that an individual had made use of the land as a parking lot for so long that the railroad lost title to the property.
OK. Let's review the basics. Adverse possession has to do with willful abandonment. Let's say you own a house in bad shape and nobody has lived there for years. A squatter moves in, fixes the house and after x number of years petitions a court to give them the property. The idea is that 1. you have abandoned the house and 2. you know they moved in and have done nothing to evict them. Generally the squatter wins, especially if they fixed it nicely and you haven't paid the property taxes.
On the other hand, if your neighbor had a garage mistakenly built that goes 2 ft onto your property, he won't be able to go to court and have the court give him that 2ft strip of your property. No matter how long the garage was there. You are not presumed to have abandoned your property, as you are not necessarily aware of where the exact line is. If you live there, clearly you haven't abandoned the property and abandoning only part of your property is a shaky legal concept. The burden is on the owner/builder to make sure the garage is built in the right place. At best the court may give him the right to keep the garage (as opposed to letting you slice 2 ft off his garage). Depends on whether the garage was built with the right permits and surveys. Here if you build anything within x ft of the property line, the permit requires a survey and you cannot build anything closer then y ft from the property line. x and y vary from town to town. So if you take adverse possession by building in violation of the ordinance, you will never prevail in court.
In the railroad case, clearly the railroad was in the business of owning and managing real estate, therefore was presumed to know if and when somebody encroached. Not doing anything about it for a long time was found by the courts to amount to willful abandonment.
DG/Builder
Edited 1/19/2006 3:24 pm ET by dgbldr
not to put to fine a point on this but i believe when you say willful abandonment that it might be construed as Acquiescence. This is a different aspect of possession law in which the result is the same as Adverse Possession but the tenet of "Hostility" is removed. In other words, with Acquiescence, you are not disputing your neighbors claim to your property.
Adverse possession has more to do with the possessor's actions than those of the owner. Basically I believe the law is construed to make it incumbent on the landowner to defend their own property rights against all others. This amounts to knowing where your boundaries are. Ignorance is no excuse.
I believe you are wrong about the "willful abandonment" issue, and, in fact, a misplaced garage is a classical example of where adverse possession would apply. It is similar in a way to stare decisis -- let stand what exists in practice.The whole purpose of the concept is to prevent some survey from coming along and upsetting what has been the assumed state of affairs for years.
If ignorance is bliss why aren't more people
happy?
Quote: I believe you are wrong about the "willful abandonment" issue, and, in fact, a misplaced garage is a classical example of where adverse possession would apply. It is similar in a way to stare decisis -- let stand what exists in practice.
I beg to differ. Stare decisis is the concept of letting stand prior legal precedent, not your neighbor's garage. The translation from Latin is "to let stand something already decided". Look it up.
DG/Builder
Someone said:
"in Michigan she would own that property even if the wall was placed in the wrong spot. It's called adverse possession, meaning that if a property owner uses the property of another owner without permission for a period of time (I think it's seven years in MI) then they become the owner of the property."
Well, close, but not 'zactly. First, it's probably 21 years. Second, the possession must be "open and adverse", that is, you must be using someone else's property as your own with the knowledge of the owner and against their wishes, uninterrupetd, for the entire period. That means, if there's a few feet of error, and neither party was aware of the error, and the owner never said, in effect, "keep out", the possession may well not be "adverse" and the property descriptions in the deeds would control. Third, it's not that easy to get title by adverse possession - you would have to bring a lawsuit to prove your claim - an "action to quiet title". Probably not something she would want to do if even a survey costs too much! ;-)
I assume from the original post that the neighbor is selling their property. I doubt a survey is required by law, but most, of not all, title insurance companies require one to issue title insurance. I assume this case would be no different, unless the purchaser did not get a mortgage and did not get title insurance (since there would be no lender requiring it.) I would suggest that she put the RE Agent and homeowner on notice, in writing, of her claim to the portion in dispute. Then, in order to sell the property without the possiblilty of a fraud claim by the buyer, the property owner would pretty much have to get a survey done. (Also, no buyer in their right mind would rely on a RE agent's stakes where there is an obvious boundary marker like an old stone wall that is at odds with the stakes -- so they'll probably get a survey anyway.) So, put it in writing to everyone concerned (including the prospective purchaser, if you know who they are.) Or, get a survey and be done with it. If you don't want to let the neighbor take advantage of your stakes, just don't put 'em in. Have the surveyer just confirm the wall is the approximate boundary. Probably pretty cheap to have a surveyer confirm that without doing a complete survey, staking or drawing the property.
Mike HennessyPittsburgh, PA
In Texas, title insurance is limited to the ownership of the described land and has nothing to do with what is actually on the ground.
Hopefully, at least most of the time, the two do match up.
To be somewhat safe you have to get a survey and a title policy. And then hope that whatever problem you encounter isn't excluded in the title policy."All men's miseries derive from not being able to sit in a quiet room alone." Pascal
"In Texas, title insurance is limited to the ownership of the described land and has nothing to do with what is actually on the ground."Same in MO.In fact the title ins will have a disclaimer for problems that could be found with a survey.
Just once, I'd like to hear someone relate from personal experience what title insurance has actually ever paid for. <G>
When you read all the exclusions and exceptions you wonder what that money is getting you.
"All men's miseries derive from not being able to sit in a quiet room alone." Pascal
I'd like to hear someone relate from personal experience what title insurance has actually ever paid for. <G>
Ditto Luka <g>.
Far as I can tell, the only "insured" party is the County Tax Office . . . Occupational hazard of my occupation not being around (sorry Bubba)
Too bad that bill didn't pass last session that would have made Appraisal District Board members elected by the public.
Different subject, I know.
"All men's miseries derive from not being able to sit in a quiet room alone." Pascal
that would have made Appraisal District Board members elected by the public
Ah, well, might could be that would be liek the bill that makes the County Tax Assessor computerize his offices, etc. All those things that will not happen until somebody unseats "Buddy" Winn in my county . . . Occupational hazard of my occupation not being around (sorry Bubba)
Have you been around Brazos county long enough to remember William T. "Bill" (Bull of the Brazos) Moore?
State Senator '60's-70's. Caperton came after him, I think.
Bill Moore was your mover and shaker. "All men's miseries derive from not being able to sit in a quiet room alone." Pascal
long enough to remember William T. "Bill" (Bull of the Brazos) Moore?
For better or worse, to know "of", but not introduced or the like.
Met recently departed Bubba Moore a time or two as well.Occupational hazard of my occupation not being around (sorry Bubba)
Said a mouthful there. Remember "containing more or less than x acres" at the end of a legal description?
My parents accidentally built part of their garage on the neighbor's property (in Michigan). My mom lived there for over 10 years. She sold it. The new owner did not get a survey done (oops). A few years later the owner of the vacant lot wanted to sell and the mistake was discovered. I know my mom was taken to court (don't know if just as a witness or as a lawsuit against her). Turns out she still had copies of the surveys done when they built. It was done by the same survey company that found the mistake years later. The surveyors apparently used the wrong set of stakes to measure over from. As I understand it, the people who bought from my mom ended up buying the vacant lot in order to keep the garage and well. They certainly didn't get to keep it based on their long use of it.Jo
Thanks all. I told her last week to pull the stakes. She's all caught up in the emotion of it...gotta calm her first...80 yo...you can imagine the thoughts running through her head.The part about trespassing charges and the buyer has to pay the survey is good info and I've passed it on. Thanks.Doubt she'll be calm enough to walk the property with the realtor, Calvin...they haven't gotten off on the right foot, and that means it won't improve from there (projecting from history). She lives many states away from me or I'd have it out with the realtor personally. And Rob's comments should take care of it without personal intervention needed, with luck.Neal, she doesn't know who owns the property...been untouched for decades...Calvin...saw mention somewhere about you making an excursion with Hub and Smith to NC to see Holly, or some such. Give a yell if you do...he's not that far away...I could maybe bop over and say hi.
There's thought of whacking the little white ball, but more over by the coast, perhaps SC. I really have to get down to burnsville. I do that and you can count on a visit.A great place for Information, Comraderie, and a sucker punch.
Remodeling Contractor just outside the Glass City.
Quittin' Time
Where's her home, a BT'er with a couple minutes could give her a hand.A great place for Information, Comraderie, and a sucker punch.
Remodeling Contractor just outside the Glass City.
Quittin' Time
The realtor's "stakes" don't have any real impact on anything, except your mom's emotions and the first impression of an unsavvy buyer. It sounds like the realtor wants folks to think the lot's maybe bigger than it is. Obviously it won't have any legal bearing, at least in the short or medium term.
I talked to a surveyor the other day about boundaries on a particular parcel. He looked at his copy of the county assessor's map, which references recorded surveys. He looked up the survey in question and read from it, a part that said, in effect, 'we drove metal pipes at the ends of the fence that runs along the north side of the property'. Sure enough, there are pipes there. Maybe you can get some info on recorded surveys from the county your mom lives in. There may be stakes on her property or on another one adjacent.
The property owner information is a matter of public record and can be had by calling the local zoning/inspection department. They will have the lot/land lines and should have a previous survey on record. If they have the folder for your mother's house, it should show the setbacks and list any variances. Whoever pays the property taxes will be listed, as will a description of the property, with dimensions. The local taxing body will have a plat map and can send it to you, too.
"I cut this piece four times and it's still too short."
I'm with you.
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
hmmm...
the Hidden family has a lot of trouble with neigbors -
wonder why dat iz? -
sounds like a ploy on the part of the realtor to get someone else to pay for the survey -
pull 'em up - and get a couple hives of honeybees and set 'em in the yard with a sign -
' Ma Hidden's Organic Honey '
'made by 2 million stinging bees'
maybe that'll give the realtor something else to think about -
>wonder why dat iz?I come by it naturally, huh?
Cloud - like Harry Potter, you don't have to seek trouble, it seeks you!DonDon Reinhard
The Glass Masterworks
"If it scratches, I etch it!"
I have seen this too many times. There was a short streach of time that I sold fences, when I was a kid. At best, the two owners, could split the diffrence, and each pay their fair share, not likely to happen, however. At most, it was the party who was stakeing the property line that was responsible for the cost of the surveyor, (you want it, you prove it, or otherwise, KEEP OFF!) I have seen whole fences come down and moved just over a few inches, back to where they belong, at the buyers expence!
There was one interesting situtation, where one party over many years planted 12 fruit tree, on this vacant land that joged into their property. The buyer of the adjoining property, total of 23 arcers, laid claim to the fruit trees, probably less than one acre. World War Three ensued! But because the land was up graded, and worked for many years, it went to court, as it was, both parties had a leg to stand on, who won, I don't know, I got out of the fence business.
If in fact, the stone wall is on the wrong side of the property line. Could that strip of land be leased, for a few dollars a year, to cover the taxes paid? The lease, will also establish who in fact owns the land. Isn't that fair? ..................Pop
There is a possibility that the orginal survey stakes (or "pins") still exist and are buried. If you know where they were typically placed in relation to say, the street (or sidewalk) it might be possible to find them by scratching in the dirt.
Deep in the woods...no sidewalks...gravel roads...only trees
A metal detector works real well. You can usually rent one or maybe she has a friend that has one .
As far as I know, only a licensed surveyor can place survey markings that have any legal standing. The first thing she needs to do is determine who placed the stakes. If it was a licensed surveyor, then the burden of proof lies on her and she'll probably need to get a lawyer. If the stakes were placed by anyone else, she can toss them over the rock wall and tell whoever placed them that she'll only allow a licensed surveyor on "her" property.
Even if the rock wall isn't on the property line, she may have a legal claim on the land based on the 35 years it's existed unchallenged by the "owner" of the adjacent property. Unfortunately, it may take a lawyer to enforce her claim.
Cloud,
I am a surveyor in WV.
My first inclination is to have the survey done, that would settle it.
At least try to get a referral to a competent surveyor and call them by phone.
It is quite possible that a survey has been done recently on a lot nearby and some details can be worked out by phone, perhaps older survey pins can be found with a magnetic locator without running a full survey. Also the surveyor may advocate for your mom to the realtor about illegally misrepresenting an official survey. I'll tell you one thing, if I knew a realtor was in my area of business setting survey pins I would do something about it. which brings me to...
if the realtor set the pins they are in way over their head. Unethical to say the least. Also making the representation that a survey has been done without a surveyors license is against the law. That's why surveyors have licenses. The state board of examiners for surveyors would probably want to know about unlawful surveys. Which brings me to...
Contact your State board of examiners for surveyors. In WV new regulations state that a cap must be placed on all monuments which have imprinted the surveyors name and license number.
Further proof of the type of resource that Breaktime is, and the breadth of the collective knowledge. Thanks for sharing your expertise!
Been in this same situation a number of times , here even if you are on someone elses property and have used it uninterupted for 10 years they can't kick you off even though they actually own it (called squatters rights)
To establish a series of actual lot pins sometimes requires finding the local bench marks that are sometimes in the ground or old buildings ( i have one on the side of my home , a former stone school house from 1875 )
I also have a "monument " one one of my propertys that was used to help prog
ram the GPS satellites plus a 3' natural gas pipeline not far away
Surveyors in a area know where the benchmarks are.
Being as you're a surveyor - Do you mind a question?Dad's neighbors recently sold some property, and the new owners had it surveyed. But they put the survey stakes about 15' onto Dad's property. I really have no idea if they're in the correct place or not. So what would you do if you wanted to contest the boundry? Hire another surveyor to verify those results?And then what would happen if those 2 surveyors disagree?This isn't something that's a big deal - It's just some rough pasture land. I'm more curious in general terms what the procedure is.
Defeat is worse than death because you have to live with defeat. [Bill Musselman]
Boss,
There must be some evidence to show why there stakes are off, perhaps old fence?
I would start by getting as knowledgeable as you can about your own boundaries, physical and record. Then I would call your neighbor's surveyor and ask that they explain the evidence they used to come up with the boundary and why it is different from your own understanding of the corner.
As a general rule when someone hires me to do a survey that includes defending my work to any neighbor that may be unhappy with the results. Often times I will have individual meetings with unhappy or just inquisitive neighbors to go over the evidence and the results. Any surveyor should try to smooth out potential disputes. It is an assumed role as a quasi-official of the courts.
If I'm dealing with a neighbor who is not satisfied with my results or explanation, I encourage them to hire another surveyor with whom I can meet with and discuss findings.
Worst case scenario is lawyers get involved and things head down that road. Normally surveyors will joke about ...if your client wants to go to court over a boundary line, especially a rural one like your talking about, we tell them to go get $5,000 put it in a pile in the yard and start it on fire, that gives you an idea of how well spent your money will be.
But in all seriousness, start by calling the other surveyor before you spend any money.
Thanks for the info.Dad isn't too worried about his pasture and/or the old fence line. I just thought about it when I saw the thread and wondered what would happen if there WAS a dispute.
Q: Why do men find it difficult to make eye contact with women?
A: Breasts don't have eyes.
if the realtor set the pins they are in way over their head.
I just had a mental image of where they were asked to produce their field book showing the temperature and weight of pull used with that plastic-framed, vinyl cloth, measure tape reel across the >100' distances . . . or, which magnetic deflection used to determine true north to follow the bearings . . .
But, then again, I know some r/e types that are in over their head just standing in 1" of water . . .
Sadly, none of that is helping Nana Hidden--and that's what's vexing me.Occupational hazard of my occupation not being around (sorry Bubba)
while I am sure there are very honest and thorough RE agents, and I actually know one or two, they still should not be allowed to buy survey flagging!
On the other hand re: Clouds Mom
1. With all this talk about Adverse Possession, I doubt she is concerned with claiming the land by AP. She probably wants what she owns, no more no less.
2. If in fact the Realtor set the corners, they have violated survey law and breached some kind of ethical boundary as an agent. I would say the best avenue for her would be the state survey board, or the Real Estate Agent Board or whatever controls their profession
3. If a surveyor set the pins, as someone already mentioned pulling them up is a crime.
Looks like you've got a shady realtor on your hands. I would reset the pins where you believe they should be. If in fact the realtor is right about placement you could challenge legal ownership since its clear your mom has taken care of the property since at least when the fence was erected.
let us know how this one plays out.
After surveying for 30 years, I've probably seen this situation dozens of times. First, get a copy of the entire subdivision with your mother's lot on it. Get a copy of the deed, abstract, or whatever your state calls it. This will have the "calls," bearings and distances set out in a legal description. Go to a surveyor's supply and rent a good metal detector. Use the plat and abstract to find all the corners possible. The reason that you need the deed, is that some corners may be "X's" cut on rock, or nails in trees instead of pins or pipes. Flag all the pins, especially the ones on the disputed line. If the line agrees with the realtors, look that same difference in distance from your pin to see if there's another pin. Do the same on the adjoiners to see if the surveyors have made a systematic error or blunder when laying out the lots. The LEGAL CALLS have presidence over the subdivision plat, as that is the LEGAL description of the property that was purchased. Note the description of the points in the calls, and see if they agree with what's on the ground. You may even find "ties" to your points, and/or the origin of the parent survey which may help you to verify existing points on the ground. Do all this work, and if you need a survey, it'll be a lot cheaper, because most of what a survey costs is in the research.
Thank you.
You've been getting a lot of responses dealing with "adverse posession." "Intent" is the key word in any AP decision. If your dad used the subdivision plat to lay out a wall, and built it to the dimensions on the plat, then his "intent" was to place it in the correct position. This is 90% of "prima facia" evidence needed to provide a favorable ruling for your mother. The remaining 10% will have to include a survey to verify the dimensions used, and to locate accurately the wall/property line to be written into a legal description for the court.
If, in fact, the adjoiner is vacant, and has remained so without conflict over the line, then reguardless of the adjoiners dimensions, the line should stand.
BTW, check your tax ascessor/collector and see if the wall was listed as an "improvement," and taxed. If your parents paid 35 years of taxes on the wall, then it was "held out and considered" to be correct.
I had a similar situation in East Texas. I got a frantic call from a neighbor one Friday evening. They were trying to sell their home and had a buyer. However, when the survey was done they found a corner of the brick garage and an out building was accidentally built on my property. It seems that when their home, garage, and outbuilding were built the builder didn't have a survey of the plot. So they asked if they could purchase a 10ft wide by 400ft deep section of my property.
To make a log story short I told them that they could have the property if they paid for a survey of my property. So they got 1/10 of an acre for $400.
In Texas it's customary for the buyer to pay for a survey of the property. The agent should know that you get more flies with honey than vinegar. Your mom could tie up any sale of the property for a long time in a prolonged court case. They should want to work with your mom to get this situation worked out before they get ant serious buyers.
Just my 2 cents
Oh yeah..I can top that one..
Back in the 90's... first house...eager home-owner...decided to build fence around 3 sides of the property...house backs onto another street...talk with neighbours...they offer to chip-in...but, no, I will pay for materials, and do all the labour..both neighbours retired..trying to be good neighbour..
All agree that the fence should go where the long-time-ago-gone fences were....rotten fence posts still visible... Dig 27 post holes....build fence on one neighbors side first...it's a beauty...posts are dead eye straight...nice looking fence...no sooner put on last cap..that neighbour's son says...I think that you are one my dad's property..... please remove fence.
Offer to get survey...should have done that first....I offer to pay for survey if wrong and move fence...if he will he pay for survey if I am in the right...No....yikes, dealing with looney...sure enough, survey says....all properties are off by about 18 inches...so...take fence apart...dig out posts....4 guys lift post and 4 feet of concrete sonotube across yard to other post holes on other side of property....no sooner get fence taken down....son comes back over...my Dad says that you can keep the fence where it was...seems he thought that I was just going to take fence down and not replace...Don't think so Tim...Fool me once..shame on you...fool me twice..shame on me...
Replaced fence with 8 foot high monster on my side of the line. Learned a valuable lesson, laugh about it now.
.....Gotta go...Quinhead
Good for you. Here is a tip. Next time, get neighbor to write you a check for $1.00, as it shows both consent and consideration. Doesn't need to be paid 50/50.
DG/Builder
fence should go where the long-time-ago-gone fences were
Ah, yes, that echos in with one of my "When I get a coupl'a grand ahead" to-do list items. My house is in a subdivision of former urban-edge farms. The farm lots were small, and fenced for convenience, at least within the larger property boundaries.
1950 rolls around, the subdivision gets platted, then sold as lots. The platted lots look nothing like the actually-purchased lots, either (not always a "match" on the platted lots, either--which probably still causes confusion in the County offices). So, folk start building houses. They start in with 3' tall chain link fencing too. Fences typically run where they will "fit," on one side or the other of existing hedge/fence rows of trees. These lines are only vaguely close to any sort of definable boundary.
So, the very nice privacy fence around my house follows the old chainlink fenceline. It varies from 3.01' inside the PL to 0.6' out down one side of my pie-shaped lot. The other side runs 0.1' out to 7.02' inside. Were that not enough, the city put a street smack dab down the PL separating my property from my neighbor's (and, yes, we pay property taxes for land under a public road).
So, at some point, I'm going to "tidy" things up. I'll get a conveyance rigged up, and three separate surveys <ouch>, to define the areas correctly, and get them organized better. I'll have my "double" lot (amendment) replatted, too, while I'm at it. One of those "really gotta" get done items, too. I've a neighbor with a garage on property I pay taxes on.Occupational hazard of my occupation not being around (sorry Bubba)
Since when can a realtor certify a property line boundry. Usually only a surveyor can do that.
Call the board of realtors and ask them to explain how a realtor can legally place stakes in the ground and set those points as boundries.
Have you checked to see if you can get your Mom's and neighbors' deeds plus any available surveys via the internet? Some places do that here (Maine).
If you had the deeds, or a copy of a prior survey, you could give the distances to the other-side-neighbor to check. I think deeds and surveys trump town tax maps.
Good luck.
oldfred
Edited 1/19/2006 4:46 pm ET by oldfred
Cloud,
Someone earlier in this thread suggested that Adverse Possession might apply in your Mom's case. Instead, it would be the tenant of "Prescriptive Easement." I've robbed an explanation of the difference between the two, so you can get a good picture of what's involved. You could do a search for "prescriptive easement (insert her state)" and you could find out how long she would have had to have the fence in place in order to be granted an easement.
"A prescriptive easement arises if someone uses part of your property with your permission. It can also occur when you use part of your neighbor's property without approval. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway.
Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use.
The legal test to acquire a prescriptive easement of another owner is that the use must be open, not secret, notorious, clearly observable, hostile, without the landowner's consent and continuous without interruption for the number of years required by state law. For example, the minimum hostile use varies from 5 years in California to 30 years in Texas.
The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land.
To perfect a legal prescriptive easement, the hostile user must bring a quiet title lawsuit against the property owner and prove all the open, notorious, hostile and continuous use requirements.
If, after purchasing your property, you suspect that a neighbor is using land with belongs to you, that person or neighbor being a "hostile user", you can choose to grant permission to your neighbor thus preventing a permanent prescriptive easement from arising. Permission should be documented such as by a letter to the hostile user."
Red Dog
Just one thing to add to all the responses so far:
To my knowledge, it's illegal for a real estate agent to knowingly place and represent boundary lines or markers as a survey. The only person legally allowed to place survey pins is a registered land surveyor. In some states, even wooden stakes or flagging of a boundary cannot be legally placed by anyone other than a surveyor, and that includes the landowner.
On the other hand, if the realtor hired a surveyor to place those stakes or pins, and your mother pulls them up, she could be in violation of the law. It's generally illegal to move, disturb, destroy or otherwise alter any monumentation of a boundary set by a licensed surveyor, or referenced in a legal document such as a plat map or deed.
If you can confirm that the dirtbag realtor is trying to cheat her out of land and placed the stakes without consulting a surveyor, then yank 'em out. I think that an hour or two worth of a local surveyor's time, with a metal detector and a copy of the deed, is a worthwhile investment.
"Your honor, I have no idea why, but a gang of crazed hell's angels just ran through my yard, tearing up those markers and throwing them across the fence" !!
Rudeness is the weak man's imitation of strength. ~~ Eric Hoffer
ROFLMAO
"All men's miseries derive from not being able to sit in a quiet room alone." Pascal
Virtually everywhere in the US, if she has exercised de-facto ownership of the disputed area for 35 years, then it's hers by adverse possession, regardless of what the survey says. In fact, if she had planted a garden on the empty lot for 35 years, that could be hers too (though there there are a few more hoops to jump through).
happy?
Where I live no one would have the lot surveyed except prior to getting a variance or other permit from the zoning or planning board or before getting a building permit.
Her deed will describe the mets & bounds but why would someone be concerned with the exact spot of a sideline? They may be trying to meet the buyers desire to construct something & the only way to meet the setback requirements is to move the stakes. I would let the BI know the frontage is being played with.
I am aware of a job in my town (2 acre lots) where each home has its own septic system & well) that I saw a realtor come over before sunrise to move a stake to locate a well about to be drilled on another lot. He did this to improve the possible layouts on an adjacent lot he had under contract.
First I would warn any potential buyers that the line is not correct & they should be forewarned that you are aware of that & will challenge their changing the line when the time comes.. Also if your lot is shortened on one side (and you have a fixed distance between lines) is there an abutter on the other side that should be concerned?
Good luck
in maybe 1950 a man built his house in the middle of a ploted sreet. was the first one. after a few years he found out it was in the wrong spot. so he goes and digs up the metal rods and moves them .fast foward to 1971 when the last few lots are left. all the houses are in the wrong spot.. luckey there was one lot left everyone could buy and split up. so next to my dads house there was a 30 foot empty lot .the man moved and confessed to my dad what he did when he left. but getting to your mom she should move stakes as fast as she can. have her call the newspaper for a nice story, realtor rips off little old lady.
Adverse possession may apply. Here in TX if you take over someowe elses property without permission, and a period of seven years passes without response from the owner, it is yours. I lost seven acres to adverse possession. I bought a 100 acre parcel and the previous landowner told me I could have another 7 acre in a remote area on the river.
In trying to take possession of the 7, I found that a neighboring owner had taken in the 7 acres with fencing and had just legally assumed ownership the month prior to my closing on the 100. A period longer than 7 years had passed.
I am not well versed on these issues but it may be an option.
We built a home in an upscale neighborhood and found that the neighbor had built a small portion of a brick column on my clients lot. There was nothing my client couild do as the brick column had been in place for 15+ years. I did not get the details, but only a word form my client that it was not worth fighting, he may eventually lose and he did not think it worth the effort and expense.
It seems to me that a proof survey would be the responsiblity of the buyer. While there may not be any current and visable pins, the original survey should tell you how it was marked. I have seen old property pins here in TX that were 12"-16" underground, found by the surveyor and made up of the end of an old solid steel axle spindle. The survey named the pin as an axle end.