All Forum Posts by: Davido Davido

@Mitchell Gisi, there is nothing in the Oregon Adverse possession statute that requires the adverse possessor to use a property as their primary residence.  A person can even 'possess' the property of another without living at the property. Renting the property to a third person qualifies as possession.  I've done so in nearby WA State for years. https://www.biggerpockets.com/...

 However, misunderstandings regarding Adverse Possession are common. There are many attorneys, and more than a few Judges, who lack knowledge of the purpose and function of the law. Here is a post discussing one such instance. https://www.biggerpockets.com/...  

Tracking down all possible next of kin to get them to sign a release is an option that can work.    In my experience, it is the most difficult option, only once has it gone smoothly.  Difficulty and greed make locating the next of kin a great choice for attorneys. It is a path likely to generate legal fees for years. 

@Tom Gimer's advice was spot on and succinct.  File a lawsuit asking the Court to 'quiet' the title in your name.  Be aware that the court will require you to notify the known next of kin of the last legal owner of the cabin. Notification is only simple if there are no known relatives. Then notice is made by printing it in a publication of record. If there are relatives, most will not hire an attorney or personally respond to the quiet title action regarding a property that no one in their family has used for decades -except on occasion to satisfy their curiosity.  

In the quiet title action, your 1st claim is that you are the rightful owner by the intent of your grandfather. Know that this claim could backfire if you do not have proof that your grandfather gave the property to you alone. Proof could be a statement signed by him, a video of his statement (video will), or the testimony of persons. Otherwise, a judge who decides that your grandfather had title to the cabin would be required to follow the Oregon Statute of Intestate Succession and may be required to award the property to the next of kin as specified in the statute. https://oregon.public.law/stat...

Also, if you do not have your grandfather's will, then the Quiet Title judge is likely to require you to notify all of your grandfather's (your) relatives.  At least those who are in line before you under the Oregon Statute of Intestate Succession. 

Your second claim is that Oregon Law gives you the legal right to the title under the Oregon Adverse Possession Statute.  Be ready to prove, you have been openly using the cabin as your own, to the exclusion of all who did not have your permission, as did your grandfather before you.  Your grandfather is your predecessor in interest and your right to the property builds on his

Your third claim is that you have an equitable (financial) interest in the property because, you and your grandfather before you, have maintained the property and paid the property taxes under the belief you owned it. (color of title). 

Best wishes, Mitchell

Hello @Christopher McConnell,  I do have experience in the State of WA, which has laws similar to CA, in paying past-due property taxes on real estate that has been "abandoned" by its owner(s).  'Abandoned as the term abandoned is defined by our courts, means the owner has intentionally given up all of his/her right to the property either explicitly or implicitly.   Implicit abandonment can be extremely tricky.  Few attorneys or judges are familiar with it.  My blog explains the principle. You can read about what I do right here https://www.biggerpockets.com/...  

In the State of WA paying the property tax is not necessary to acquiring title under a claim of adverse possession.   However, as a practical matter, someone must pay the property taxes or the county will foreclose long before an adverse possession claim would be effective.  Therefore, I pay the taxes on the abandoned properties that I possess.  In WA, as in many states, there is a different time period to acquire title if the person in possession has color of title (7yrs) https://app.leg.wa.gov/rcw/def..., whereas an adverse possessor must hold the property for 10 years if he/she is without some claim to title. https://apps.leg.wa.gov/RCW/de...   

As noted by @Lynnette E. for CA,  there does come a point at which counties in WA will not let just anyone pay the property taxes.   In WA, only a lienholder may pay past-due property taxes after the county files its Certificate of Delinquency (the start of property tax foreclosure) with the Court.  However, refusal to allow interested 3rd parties is not nearly as much about preventing fraud, as it is about keeping these properties in foreclosure so that excess proceeds of the sale can escheat to the county (the right of the county to take ownership of unclaimed funds).  It is not fraud to pay another person's bills, 

@Gilbert Nyantakyi, @Joe Martella's offered good advice to check on whether the N.Y. Adverse Possession statute applies to the facts of your case. https://www.nysenate.gov/legis...   I would still look for a reasonable an amicable settlement, but the time required for adverse possession in NY can be as low as 10 years.  Meaning if your building has been on his property for 10 years, then a court would likely award you that portion of his property.  (be aware of zoning that may require the building to be setback additional feet from the property line in order to be conforming).   

Do check out adverse possession.  It could put you in the driver's seat.  You might be far more able to dictate terms, if any.  You may be able to argue persuasively that you would win in court if it went that far.  You may also be entitled to recover your legal expenses if you win.

@Emmanuel C Thompson, There are many ways.  One simple way would be to get a simple one page Quit Claim Deed from each of the known heirs.    They do not currently have title interest in the property, but they do have equitable interest by their right of heirship.  With a Quit Claim deed, they guarantee nothing, but grant to you all of their interest, if any, in the real property -including their right to inherit it.  From there you could probate the property yourself.  Make sure you understand the family tree of the deceased owner, and your state's laws for intestate succession (The state statutes on who inherits property when the deceased owner has no will)  Best to you.

@Will Sifert  Excellent idea to use the County's online property records to find attorney's knowledgeable and experienced with Quiet Title action!   Yes, in my State, WA, the IRS (anyone) with a court adjudicated debt can petition the Court to have their debt renewed for another ten years.   Since, it is a monetary/property issue, State law controls the statutory expiration period of the lien.  I have not personally ever seen an IRS lien extended.   If the amount owed to the IRS was high (Millions?) and the IRS had been receiving some payments, then I would be concerned.  But lesser debt, with no history of payment is unlikely to trigger IRS to seek Court approved extension of its lien. 

@Anastasia S. On property 1. The right of the IRS to sell the property is one of the few liens that remains even after real property is sold in a tax foreclosure auction.  In most counties, 

" Any federal Internal Revenue Service liens that, pursuant to provisions of federal law are not discharged by the sale, even though the tax collector has provided proper notice to the Internal Revenue Service before that date. "

IRS liens attach to property owned by the taxpayer. IRS does not file a lien against a particular piece of property the way a mortgage holder would. When any real property of the taxpayer is foreclosed the taxpayer still owes the IRS. That lien protects the IRS so that they will receive any proceeds from the sale of property instead of the taxpayer.

If the IRS believes the sale was dramatically under market value, it retains the right for up to a year? (that's from memory) to foreclose its lien and resell the home. This is extremely rare and not something I would personally worry about.  If the IRS chose to foreclose its lien after you bought the property at a tax foreclosure auction, you'd be paid back the amount of your purchase price and a few costs.   Also check the date the IRS lien was filed.  They only last 10 years.

Regarding your property #2. I would have little concern about buying it the property tax foreclosure auction.  However, the prices paid at property tax auctions in my county are typically over 85% of market value.  So I would attempt to get at least a portion of the property from a relative if you can.  I'd locate a relative, and offer cash for a Quit Claim Deed, then pay up the taxes to remove the property from the auction. 

Property Tax Foreclosure auctions can be a bit tricky though.  The excess proceeds from the auction (amount paid for the property that is more than the taxes owed), often become the county's money to spend.  So they may have quite specific rules about who can pay past due property taxes.  If you pay up someone else's property taxes at the last minute, you'd be potentially denying the county an even bigger source of revenue, (the excess proceeds).  County officials may wish to prevent an 'investor' from denying their budget those excess proceeds.  They may say that the relative was not on title, so he/she has no right to pay the taxes.  In some states you would need to start a probate action, and be appointed the executor before being able to pay the property taxes.  Best wishes  

@Bill B.,  You are certainly not the only person who thinks that my approach is "scummy".  Most readers will.   And here is a link to a trained Attorney, hired to advise Realtors on real estate law via our local Realtors Legal Hotline.   She chose more specific words for the type of conduct I proposed. "Trespass, Theft and Fraud".  https://www.biggerpockets.com/...  In that link I show why each of her allegations were erroneous.  Below, I show why I would be thankful if what I recommended happened to me or or to the estate of someone I love.

The reason I would be thankful is that both the property and ALL of each relatives rights are preserved and enhanced for years to come. In my experience the greater danger in these situations are that no one does anything.  Time after time, I see properties where the owner dies, and none of the surviving heirs care enough to step up and probate the property.  Thus, the property falls into dereliction, decay, and the destruction of trespassers until at last the county forecloses for nonpayment of property taxes.  

My recommendation to Lonell would preserve the property along with all the rights of the heirs (and their descendants) for 21 years.  If Lonell steps up and moves in, the property is thereby secured, the property is more likely to be maintained (preserving value), and if he intends to stay there, the property taxes will be paid.  For Lonell to follow my advice, he's gotten a title report, he's verified whether his Great Aunt had a will, he's determined the Ohio Laws regarding Intestate Succession, and he has researched the family tree so that all heirs listed under Ohio law are correctly identified.  Then he has approached each of the deceased owner's siblings asking them if they are willing to sign over the property. In doing so he has necessarily informed them that they have an inheritance.  Not a bad start.

These actions only become 'scummy' if you assume facts not supplied.  Lonell specified this is Ohio (last word of his post).  The property is in the rust belt.  Since this is not a high value area, it is more likely the property is not worth $10's of thousands to any one of the parties.  But if it is, we should not assume that the senior heirs are incapacitated regarding their finances.  And if one or all of the elder relatives are incapacitated we should not assume that Lonell is going to take advantage of them by accepting their interest in the property without offering a fair return.  And if a senior heir was incapacitated, and Lonell did take advantage of the infirmity, the estate or the loved ones of the incapacitated heir can still make a claim of improper transfer even years later -but only because the property value is still there.  Only because someone stepped up to preserve the value and to pay the taxes.

If the senior heirs don't wish to sign away their interest, but also aren't willing to probate their interest, then it still not 'scummy' to preserve the home by using it.  And, if the heirs merely neglect to make a decision today, or this month, or this year, they still have the right to make their claim at any time during the next 21 years. If Lonell follows my suggestion the property is preserved for years instead of being foreclosed for property taxes.  And the property will still have value instead of being left to decay.  Note that most counties will not track down the heirs to pay them any excess proceeds from the tax sale.  Excess proceeds 'escheat' to the county, then the heirs inheritance is gone forever.  Or, if an heir does decide to  probate the home, then Lonell's use of the property grants him no extra legal interest, he has merely contributed to securing it, preserving it, and to creating some income (rent) for the estate.  

So you are correct to see that there are other ways to handle this.  There is always another way, and there is always a better way.   Seems to me, that in this instance it is important for someone to step up and do something.  Despite appearing 'scummy', what I proposed, is effective, and far more beneficial to the heirs, who are not willing to probate their inheritance, than letting it go into property tax foreclosure.  Best wishes.

@Bill B. no one on this thread, except you, has suggested conning anyone, nor stealing.  My reply was to ask the relatives if they wanted to sign over the house to a family member.   Perhaps your family wouldn't do that, but many families decide quite amicably how to distribute mutual interest in real property.  It starts with asking.  Sometimes, people just need time to decide what they really want to do.  So it pays to be willing to ask them again.

Until real property is distributed in probate, it does belong to the estate of the deceased, however, the estate can abandon the property. I see cases of real property abandonment every year in my county, Thurston, in WA.   After only one month, it would be hard to make a court cognizable claim that the property at issue here was abandoned. But when that claim can be supported, then there would be no trespass by anyone who uses it. https://www.biggerpockets.com/...

As to stealing a relative's house, that too is only your suggestion.   My suggestion was to start using the home -which actually serves to preserve it, whereas leaving a home empty an unmaintained results in steady decay.  If, after 21 years, the relatives with superior interest in the home have done nothing, then the LAW of Ohio declares that the home should become the property of the person who has been living there an taking care of it.  It is the legislature of Ohio, not Bill Brandt, who determines what theft is in Ohio.  

After informing a family member that he/she has an interest in real property, it is often enough the case that other family members are neither willing to quit their interest in an inherited property nor to pursue it.  Not all people are like you Bill. Some people are stuck in their own routines and limitation and are unwilling to take on a new decision or responsibility.  Every year I see people who are unwilling either to let go of, or to contribute to maintaining or probating a family member's real property.    

If Lonell did start to use the property and a relative later decided to pursue his/her interest in the property, then that relative would necessarily start the probate process.  In that case it is likely that the probate court would order Lonell to pay the estate a reasonable rent.  While it is possible to be arrested for almost any act or failure to act, being arrested for possessing the real property of a deceased family member is something I've never heard of, especially when other family members with a superior interest have failed to probate the property.

Finally, here is exactly what I tell tenants when I rent a property to them that I do not own. https://www.biggerpockets.com/...

Thanks for your responses to Lonell.  No one on this thread is advocating fraud or theft.  What I recommended was using (maintaining) the property, which is certainly to the benefit of the estate.  It is the law of Ohio, that a person who uses real estate long enough, it entitled to keep it.

Ohio Statute requires 21 years of use to adversely possess the property of another person. You can easily avoid losing any land by knowing your property lines and checking/walking your properties every few years.  The person adverse to you must use the property openly, notoriously and continuously and must exclude you from using it all.  It really is not an issue for 99999 out of 100,000 property owners. https://www.nolo.com/legal-enc...  or https://codes.ohio.gov/ohio-re...

If you want to be sure you get the property, then get a title report on it, attempt to buy an assignment of any mortgages or liens to you at a deep discount.  Then verify whether the owner had a will.  If no will, then the owner died intestate (without a will) so State law of Intestate Succession controls who has rights to the property . https://statutes.capitol.texas...  or https://www.nolo.com/legal-enc...  Go down the list of those in line to inherit the property under Texas law and see if you can locate them and get the next person in line of inheritance to sign over his/her right to the property to you.  If you bought any liens then tell the next of kin how much is owed (full amount of the lien plus interest -not what you paid of it).

An alternative, and simpler but slower and less certain method is to treat the property as yours.  Pay the property taxes, care for, cultivate and/or cheaply fence the property and wait out the period of Adverse Possession.   https://www.biggerpockets.com/...   

If you are able to gain partial interest in the property from someone in the line of inheritance, then you would have 'color of title' and your period of adverse possession can be as little as 3 years in Texas.  Otherwise, if you just pay the taxes it is generally 5 years, or 10 years if you didn't consistently pay the property taxes or have color of title. https://statutes.capitol.texas... or https://www.nolo.com/legal-enc...   Best Wishes