All Forum Posts by: Davido Davido

@George Kamerzan,  "What should I do?"   George, you should immediately (today) claim in writing the property that you believe to be yours.  Hand deliver one copy to your neighbor and mail a certified copy as well.  Claiming your property will stop the clock from running on your neighbor's adverse possession of your property -if it is not already to late.  Claiming your property can be done in a neighborly way without antagonizm. 

Merely provide your legal description along with your measurements from known points which establish that XX' of his road and shed are on your property.  Make it clear that the neighbor doesn't have your permission to use any portion of your real property.  And state simply that to protect your title you require the neighbor to remove his personal property from your real property and stop trespassing.  

In Washington State, someone who can prove that they have openly, continuously, and exclusively used your property (or your predecessor(s) for 10 years, can make a legally cognizable claim in court that the portion they have continuously and exclusively used should be awarded to them.  

RCW 4.16.020

Actions to be commenced within ten years—Exception.

"The period prescribed for the commencement of actions shall be as follows:Within ten years:(1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action."

Do not be confused by RCW 7.28.050 (Limitation of actions for recovery of real property -Adverse Possession under color of title deducible of record).   Section 7.28.050 of WA Adverse Possession Law requires "Color of Title"  (some apparent written claim on the title) and it also requires paying the property taxes for seven years on the portion of land being adversely possessed.   RCW 7.28.050 is not likely to be applicable in your boundary line issue.   Therefore, RCW 4.16.020 (cited above) would apply.  Under RCW 4.16.020, your neighbor can defend any claim by you to actually own the land he has been using, by pointing out your claim is barred by the Statute of Limitations.  You and your predecessor(s) waited too long to claim your property.   If your neighbor files an action to obtain title to the land, or defends an action from your to remove him, and he/she can establish the land has been used exclusively by him/her, continuously, and openly for ten years, then the fact that you hold title is no defense.

RCW 7.28.320

Possession no defense.

The fact that any person or corporation against whom such action may be brought is in the possession of such property, or evidence of title to such property, shall not prevent the maintenance of such suit.

So I recommend first stopping the adverse possession clock by claiming your land.  Once you've unequivocally claimed your property from your neighbor -then start gathering the facts (how long has he used the property exclusively, what can he prove, what can you prove, survey if needed) and reviewing the law to see who is likely to prevail if the matter goes to court.  Bear in mind that often it is possible to negotiate with an adverse possessor for return of the land in exchange for not suing, or you can offer the neighbor cash to return you land instead of going thru the expense of suing him, or can request cash from the neighbor in exchange for not taking the matter to court.  Some people are very hesitant to go to court.  So let it be known that you are open to negotiating a resolution.

Final thought. Even if your neighbor meets all the WA requirements to adversely possess a portion of your land, a recent change in WA law (2011) requires that the adverse possessor repay you a prorated portion of the property taxes for the land they adversely possessed.

RCW 7.28.083

Adverse possession—Reimbursement of taxes or assessments—Payment of unpaid taxes or assessments—Awarding of costs and attorneys' fees.

(1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be required to:

(a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser; and 

(b) Pay to the treasurer of the county in which the real property is located part or all of any taxes or assessments levied on the real property after the filing of the adverse possession claim and which are due and remain unpaid at the time judgment on the claim is entered.

(2) If the court orders reimbursement for taxes or assessments paid or payment of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the title holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just.

(3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.

George, I am not an attorney, but I do work with adverse possession regularly -as the adverse possessor of legally abandoned real estate.   I have posted a few articles about my work in BP blog.  You might find of interest. 
https://www.biggerpockets.com/member-blogs/12388-abandoned-property-adventure-on-wildside

@Renee B. and @Wayne Brooks   "Can the siblings sign the contract or do they need to get permission from Dade County?"

The siblings can contract to do whatever they want with their interest in the property (sell, lease, abandon, or grant their interest to another).   They do not need permission from anyone.  In saying that, "Without probate appointing a Personal Representative, no one has the legal right to sell....the heirs don’t own it."  -Wayne is correct in regard to legal title.   However, bear in mind that legal title is a function of equitable title.

Unless the property is foreclosed, the sibling heirs have an "equitable" interest in the property which a court will recognize.   The heirs can sell or transfer (give away) their equitable interest whether the property is probated or not.   Transfer of equitable interest can be done in multiple ways, the simplest is likely to be via a one page Quit Claim Deed.  

Thus if you acquired just the equitable interest of all siblings, and you could negotiate with the foreclosing entity to stop the foreclosure, you could then use the property as your own.  You would have acquired all the equitable interest.  You could then put it through probate to get clear title, or just rent it, or even resell it without clear title.   Usually sale of real property without clear legal title results in a dramatically lower sales price.

The equitable interest of the heirs is controlled by the Florida Statute of Intestate Succession, 

https://www.flsenate.gov/Laws/Statutes/2011/Chapter732/All

Nick, you can do a lot without clear title.  In similar circumstances, my priority would be to obtain possession and rent the property to produce income.  If you need clear title then the title company and or lawyer will be helpful, perhaps necessary.  However,  the simplest move is to arrange with the daughter for you to take possession of the property and rent it out.  Mere possession and use of the property as though it were your own can eventually give you clear title via the laws of adverse possession.

To obtain possession from the daughter you've talked to, is as simple as having her sign (and notarize) a one page Quit Claim Deed by which she grants all of her interest in the property (if any) to you.  You would then have "color of title" and could treat the property as though it were your own -unless a sibling or person with greater claim of title showed up.  That is possible, but does not happen in the majority of cases.   

You could obtain Quit Claim Deed's from all who have a legally recognized interest in the property.  If either or both of the deceased owners had a will, then the will controls who inherits the property. If there was no will then the state laws of intestate succession control who inherits the property and how much % interest they inherit as mentioned above by @Wendy Hoechstetter  https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm

You can also use a Quit Claim Deed to take the property through probate your self, with or without a lawyers help.  Best Wishes


 

Neighbors, are you sleepwalking?  The response to the coronavirus is intentional malevolence?  No country in the world has experienced a significant year over year increase in their rate of deaths per 100,000 population.  Not even Italy.  Yet commerce has been irrationally shut down -almost globally.  This response to a disease is unprecedented and that should tell you something.

We have entered the early phases of a planned intentional disaster.  Shortages of essentials (including food) and massive bankruptcies are not only coming -they are planned.  The banks will close (Bank Holiday), and a financial reset will be declared that includes essential steps toward establishing a global cashless monetary system.  It is the plan to spread enough pain globally to make people thankful for a new monetary system that people would otherwise want nothing to do with.

This is a time for emergency action to ensure those you care about have the essentials needed to survive.

@Matt W.,  You have received solid advice above.   Here are some additional thoughts.

"My question is, given that no government agency knows how bad the property currently is, are permits necessary?"

Depends on how you define "necessary".  Permits are legally required (in most jurisdictions), but it is certainly physically possible to restore the home completely without any permit.  If desired, you could even rebuild the home to a condition better and safer than the code requires, again without getting any permits.  Most people use the term "necessary" synonymously with legal. 

For simplicity sake, lets presume I'm using all my own cash for the purchase and rehab, no bank requirements for general contractors, inspections for draws etc. ... As far as I can tell, the bank's appraiser will want to see and after pictures that show that quality work was performed, but does that mean reviewing permits? 

If a bank is loaning money for the rehab, they will require permits to be acquired and complied with.  If you are referring to obtaining a refinance loan after your rehab, then your biggest concern would be that the bank could require an building inspection.  A review of permits would be unusual, unless the inspector found an obvious problem, like 4 bedrooms and two baths in a home that county records show to be a 2/1.

...(A)s far as the city/county knows the house is still in livable shape and is current on taxes/has no code violations. ...  Is there a need to re-certify and get a certificate of occupancy?

Not likely if the outside walls and "foot print" of the home remain unchanged.   Some, but not all, jurisdictions place a % limit on the amount of rehab that can be done.  More than XX% of rehab is considered creating a new building and could require a new certificate of occupancy.   That is almost unheard of if the outside walls all remain unchanged.

@Handel Carter,  you are not required to do anything at all -unless a court orders you.    The burden of proving any claim for any portion of your driveway is entirely upon the Attorney and his client.   I'd respond in writing, that you are happy to look over any documentation they have regarding their claim.  Take @Henry J. 's advice, "contact the lawyer and ask them to show you the survey, and paperwork showing that you’re using their land. Then from there do your homework to research" .   However, I wouldn't feel a need to hire an attorney or surveyor, unless and until a lawsuit is filed.   Having an attorney send out a demand letter is a common tactic to scare a party into compliance.  Actually filing a lawsuit is more rare and much more expensive.   If this is a small slice of property that hasn't been used by the claimant or his predecessors for 30 years, then a lawsuit against you is unlikely.

But if you are sued, then based on what you've posted, you have a valid (legally cognizable) defense.  30 years of continuous use of the property by you and your predecessors constitutes (Adverse Possession and/or Prescriptive Easement).  Pennsylvania has recently changed its AP laws making it easier to claim. 

https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=42&div=0&chpt=55&sctn=27&subsctn=1

Here is a case of adverse possession with facts somewhat similar to yours.   From what information is in this post, you likely have nothing at all to worry about.

https://zwick-law.com/2018/01/17/zwick-law-develops-new-adverse-possession-law/#:~:text=What%20is%20Adverse%20Possession%3F&text=Under%20Pennsylvania%20law%2C%20to%20sustain,%2Done%20(21)%20years.


Despite the fact that your new neighbor's attorney's  "... letter says my options are return to prior state, (or) .... pay lump sum to purchase or lease it."   You have many options.  Including calmly doing nothing.  The burden is on them.   Call the attorney, ask him to send you all documentation supporting his claim, and ask him how he thinks his client could ever prevail against the valid and just claim of your and your predecessors to possession of the driveway for more than 30 years, or at the very least to a prescriptive easement (the disputed land is theirs, but by years of continuous use, you and your predecessors have established the right to use it).

@Rick H.  Wonderful to have you posting again in these forums.  Great to have your input!

@Jeremy Pace, "wouldn't it make more sense to purchase her beneficial interest from her"?  Yes.  Absolutely.  If there are potential problems showing sufficient legal ownership to file a Quit Claim Deed, then a document transferring the widow's beneficial interest is a great way of moving forward.  

@Jeremy Pace,  Good thinking Jeremy.   I can not speak on what happens in PA.   However, in my state (WA), and in most State's, County recorder's primarily check documents for proper form.   Here, if a document is in the proper format, the county recorder will record the document with no judgement at all as to the validity of the document.   A recorder is not likely to record a Quit Claim Deed for a property located outside county, but they do record Quit Claim Deeds for which the grantor has no interest at all in the property.  When a recorder Certifies a deed, they are only certifying that it is a true and accurate copy of what was originally recorded.  It is the courts and title companies, not the county recorder, who decide whether the document has validity or creates an insurable title.

 My suggestion to obtain a Quit Claim Deed is merely one way to move forward with this deal immediately -despite the problems with administration of the trust.  A Quit Claim Deed from the Widow would give Anthony Vargas all of the widows interest in the property (if any) and provide him a title defendable against any future claims by her.  My suggestion can preserve the deal and create cash flow from it -while working to resolve the Trust Issues necessary to obtain a clear title.

I necessarily assume that Anthony Vargas is accurate in his statement, "Her husband passed away and gifted her the property in the trust."  Which also assumes that the now deceased husband had the right to make that gift.  Those assumptions may not be accurate, but are simply working with the information given. 

If you have any experience with a county recorder refusing to record a Quit Claim Deed, please share it.  That would be interesting and helpful.  Thank you for your cautionary suggestion about the possibility the state will need the Trust Agreement and declaration of the beneficiary.

@Anthony Vargas,  Sounds like you will be able to find the trust documents through court records.  If not, the widow has a bit of a problem.  You could offer to solve that problem for a renegotiated price or better terms.  Then have her sign over her interest via a quit claim deed and offer her incentive to work with you to obtain the documents necessary for clear title.  When she signs over her interest, you could rent the property while working on the title problem.  Worst case, you can clear title in  five years by filing a Quiet Title action seeking relief under CA's Adverse Possession Statute. 

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=322.&lawCode=CCP