Experience with Adverse Possession?

Question

If you purchase a piece of property, and know for a fact that part of the property is now owned by your neighbor due to adverse possession, would it be advisable to give that land to the neighbor to avoid having to pay their property taxes? Are there any tax benefits from donating this land? Could mineral rights come into play? I know this is probably quite rare, but if anyone has any experience in this, any advice will be appreciated.

Thanks,

Gene

Thanks,

Gene

Gene D Stephens · Answer

"Adverse possession laws vary by state. Oklahoma adverse possession law If the neighbor has notoriously occupied it for a period years, in your state 15 years, he has legal claim to it. You might check with a local attorney on this."

@ Frank Chin

In this specific instance, it is undeniable that a house was built on that property more than 15 years ago simply based on Google Earth data, but you can see by the county assessor records that the house on the subject property was built in 1950 and then the property encroaching was built over the property line shortly thereafter, in 1951.

@ Matt Devincenzo,

From the info in your post, the land does not seem to have officially been taken by AP. From the assessor's site, the land-use records show that the encroaching property owner has only been paying taxes for their plotted land, while the subject property has been paying the taxes for land on which the other’s building partially sits.  I was unaware of the tax-paying requirement you mentioned for adverse possession.  You seem to have quite a bit of knowledge on this topic.  What would you do in this specific situation?  Sounds like I might need to follow Frank’s advice and consult an attorney, although that will definitely be the last option I pursue.  Thanks for any advice.

Gene

Matt Devincenzo · Answer

There's some mis-information and mis-understanding of AP, the process and it's effect in this thread. I'm not an attorney or expert in AP specifically, but do have a working knowledge of it for Civil engineering/survey work and have had two projects where this came up and I was able to 'ride along' and see how it unfolded.

First, if you 'know' the property has been taken by AP then there's nothing for you to do with the tax assessor etc. Completing AP requires the other party to file a suit in court during which the judge determines that the case has merits, and ultimately transfers the property to the filer. If that happens then the tax record is updated by the effect of transferring the property. It doesn't sound like that has happened here because you keep saying you want to transfer it etc...essentially you want to give them the property, because right now today they do not own it and have not completed AP...you're doing their job for them.

Also the idea that occupying a 'piece' or 'portion' of property allows for AP is flawed. One of the criteria is that the filer has paid the property tax on the property for the given time. If your objective is to reduce your own tax burden, you are in essence confirming they have no valid AP claim. Since tax bills are for entire parcels (typically, though not always) then it is highly unlikely that they somehow segregated the taxes for that small portion and paid it. So again their AP claim is unlikely to be valid since they haven't paid the tax on that piece.

Finally, depending on the use and if they were ever given any permission then there may be no claim. The AP has to be open, notorious and hostile...those terms have a legal meaning and essentially it is that you as the owner have been fully deprived of your right to the property.

Absent those items above, it sounds like at best they have another legal right which is a "prescriptive easement". They could enjoy use of your land that way. Typically these encroachments are much more likely to fall under PE than AP...

Finally if no one has filed anything for AP or PE yet, then you may have the ability to regain your property right. You can begin to shore up your personal case to defend AP/PE before they ever file. If they meet the requirements for a PE right the only way to actually confirm is again through the courts where a judgement is made. Before they ever file start to strategize how to dismantle their claim. You may could give them a license to use the land, provide a temporary or revocable easement or otherwise permit the use in some way. This now places their use back subject to your approval, so their own claim via AP/EP statute is reduced.

My last AP claim was a fence 4' past the property line and a neighbor claiming the land under AP. My developer client successfully defended the initial challenges and settled on this having PE rights, so he shifted the site plan to avoid the issue. We (developer and all of us as consultants) were sued over this PE three years later, which I mostly believe is because they realized they had no 'proof' of the PE beyond the fact that we had shot holes in their AP until they acquiesced to PE. Suing was their way to create a record...coincidentally the client probably would have just signed an easement for them without the suit...but they chose to file first and then discuss.

Frank Chin · Answer

@Gene D Stephens

Adverse possession laws vary by state. Oklahoma adverse possession law   If the neighbor has notoriously occupied it for a period years, in your state 15 years, he has legal claim to it. You might check with a local attorney on this.

In NY where I am, the period is 10 years. I bought my home in 1993, and some years back the prior owner neighbor advised the border fence is a few inches onto her property. About year 2010 it was purchased by the present owner and in conversations, he knew about it but did nothing. Under NY state law he cannot now or in the future demand that I move the fence back onto the property line as I now have a legal claim to it.

Valerie Anthonyova · Answer

Then you need to find a trustworthy charity to handle this matter.

Gene D Stephens · Answer

Not a fence line but still about 15ft by 150ft of property.  I think I might look into donating it just to get a tax write off as well as stop paying taxes for someone else's land.

Valerie Anthonyova · Answer

If you only give it as a gift, it will be considered a gift. The IRS has a regulation that amounts less than 15K are tax-exempt, of course, this requires you to file a tax return.

Marcus Auerbach · Answer

Mineral rights? A few more details would be helpful. If this is about a fence a foot over the property line, I don't think the juice is worth the squeeze..