Adverse Possession (long) - Posted by Paul_NY

Real Estate Investing
1

Posted by Paul_NY on February 06, 2000 at 22:26:35:

John,
Thank you for your response.

I guess I was way off track by thinking the situation involved Adverse Possession. EASEMENT is absolutely correct. When I read the deed to the commercial property, I was looking for a right of way which is an easement!

Doh!

I will check with an attorney. The local residents tell me this ‘easement’ has existed for as long as they can remember. :frowning:

Now that I am clear about what I have here, I’ll be able to explain the situation to the next owner. My goal is to sell the property ASAP.

Thanks for your help.

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Adverse Possession (long) - Posted by Paul_NY

Posted by Paul_NY on February 05, 2000 at 23:55:05:

I have a 2 family residence on a main highway. A commercial building is situated next to my property.

My property was subdivided out of the commercial property lot in 1979, according to the deed, and then the owner sold both parcels. The new owner moved and let it go for taxes. I bought it at the tax sale in the 1990’s.

The commercial property (once the entire property) was at one time a gas station, a plumbing shop and now a small engine shop. The mechanic at the shop is brother/son of the title owner. He has no employees.

A driveway/road encompasses the commercial building and FOR YEARS vehicles have driven around it. There is a moderate amount of usage of this road as the US Post Office sublets a portion of the commercial building (the other side of the building) and people drive around the building because it’s convenient, but the post office lease covers only the driveway/road on its respective side.

My property line run straight up this driveway/road on my side and takes up a majority of the width of the road. If I fence the property line (there’s a survey stake in the road), it would stop the ingress and egress to the back of the building where the small engine shop is located. Everyone would them have to go around to the other side where the post office is located to access the small engine shop.

A review of the deed shows no right of way or any easement which allows this driveway/road to remain open or to be shared. The original grantor of both buildings obviously subdivided the property with no regards to the driveway/road.

I’m planning to sell my 2 family soon.

I must admit, I’m a bit annoyed paying property taxes and watching the public drive in my yard (they don’t know about property lines, they’ve been doing it for years) and watching all the small engine shop customers come and go.

In the winter, the small engine shop has the snow cleared to open the road. Many times, it is pushed up onto my property. Last year, a portion of the log fence that seperates my lawn from this road was plowed down. I have repeatedly complained about this situation to the owner of the building, but nothing is ever done about it. The owners brother runs the small engine shop (by himself) and contracts the snow removal.

This year again, the snow was pushed up onto my property. After phoning the owner yet again, he responded by saying, “put posted signs on your property. I don’t have anything to do with it.”

Yeah right! A posted sign on my front lawn and no control over the happenings at the property.

So, I had to bring up closing the road to public use. “Why does it need to stay open?”, I asked. And he replied “because we need that road”. So, I mentioned the location of the property line and he said to me, “you’re gonna start that sht! Why are you being such a dckhead?”. As I remained silent on the phone, he said his lawyer told him that he was allowed to use the road (yea, right! This issue never came up before) and he would go to court on it.

I don’t have a problem with going to court if I have to.

My property has no driveway. I can’t expect to show/sell the building and tell the buyer to park on the lawn along with his tenant, and then say ‘that road is part of the deeded property too!’

Should I just fence the property boundary and face the coming kaos. Or should I sell the property the way it is.

I found this law link to NY Consolidate Law, and it doesn’t look good for me.

Please give your thoughts and opinions.

See you in court, sonny! :frowning:

3

This is about “Easements” - Posted by John Behle

Posted by John Behle on February 06, 2000 at 17:24:17:

You need a real estate attorney in your local area - that knows the local laws. The question isn’t about Adverse Possession - it’s about whether they have a “prescriptive easement” based on how long they have had the use of that road. The laws and time periods vary state to state.

Adverse Possession is about ownership. Easements are about use. There is not likely any threat or question about your ownership - but whether you can now restrict the use by putting up a fence, wall, etc. If you haven’t already lost that right, you could soon, so don’t just assume it. Do something before it is too late.

From the following link: http://www.instanet.com/~hgerrity/pe.html

Prescriptive Easements

"An easement by prescription may be acquired by adverse use for five years. The title so acquired is as effective as one obtained by conveyance, but it is not a marketable or insurable title until established of record by appropriate proceedings against the holders of record interests. Benson v. Shotwell (1890) 87 C 49, 25 P 249 (applied rule to adversely held land.)

The elements essential to establishing a prescriptive title are in general the same as those for acquiring land by adverse possession–open and notorious use, continuous and uninterrupted for the requisite period, hostile to the true owner, exclusive, and under a claim of right. Payment of taxes need not be shown, however, unless the easement is assessed separately from the land. Lee v. PG&E (1936) 7 C2d 114, 59 P2d 1005; Note, 32 Calif L Rev 438 (1944)." 1 Ogden’s Revised California Real Property Law 559, (1974)

CAVEAT: Please consult an attorney for legal advice. Laws in the United States differ from one jurisdiction to another. Any law stated herein is for educational purposes only and may not apply to your particular circumstance.

4

Re: Adverse Possession (long) - Posted by B.L.Renfrow

Posted by B.L.Renfrow on February 06, 2000 at 12:02:00:

If I were you, I’d run this one by a competent RE attorney, but you may have a problem.

It depends, of course, how long the adverse possession has gone uncontested. “For years” doesn’t bode well for you, particularly if it’s the 20+ years since the property was subdivided.

You could always offer to pay off the owner to cease and desist, but it doesn’t sound as if he’d be motivated to do so.

Like the other post says, if need be you can make the guy’s life miserable by filing claims for damages for your fence, lawn damage, etc., but it may not make a difference.

Good luck, whatever you decide to do.

Brian (NY)

5

Re: Adverse Possession (long) - Posted by ChrisFL

Posted by ChrisFL on February 06, 2000 at 10:27:12:

I wouldn’t bother trying to enforce that property line now, his lawyer is right. What you might try is calling him back and telling him that you’re willing to allow him to continue using the road, but every time snow is pushed into your yard you will sue him and his snow removal contractor. Let him know you can be as obnoxious as him, and keep him in court defending himself on a succession of piddling little claims for damages rather than running his business. Of course, you won’t be running YOUR business either.

I’m the vengeful sort myself, but I think I’d be inclined to let this one go after I got over the initial mad.

ChrisFL