ArcaMax

Dear Monty: Our neighbor's house, which was moved here, has been proven by a survey to sit on our property. We told her that, but she ignored us. She later remodeled and mortgaged her house, giving the bank a description of a lot owned by her nearby. The title cleared on the ownership of her lot, but the house, of course, wasn't on that lot. We have paid the taxes for over 50 years on the lot that the house actually sits on. Can she win through adverse possession?

Monty's Answer: This is a complex situation involving property law, adverse possession and potentially fraudulent actions. Let's break down the key points and consider the implications:

No. 1: Survey Evidence: The fact that a survey has proven the neighbor's house is on your property is a crucial piece of evidence. This establishes the true property boundaries and supports your claim.

No. 2: Notification: You informed the neighbor about the encroachment, which is important. This shows you were aware of the issue and took steps to address it. Do it again if it is not in writing.

No. 3: Neighbor's Actions: The neighbor's decision to ignore your notification and proceed with remodeling and mortgaging the house could be seen as acting in bad faith. This may work against her in an adverse possession claim.

No. 4: Mortgage and Title Issues: By providing an incorrect property description to the bank, the neighbor may have engaged in fraudulent activity. This could have serious legal consequences and may invalidate the mortgage.

No. 5: Tax Payments: Your consistent payment of property taxes for over 50 years on the lot where the house sits is a strong point in your favor. It demonstrates your intention to maintain ownership and could counter an adverse possession claim.

The possibility of the neighbor winning through adverse possession depends on several factors:

No. 1: Statutory Period: If the house has been on your property for less time than the required statutory period in your jurisdiction, the adverse possession claim would likely fail.

No. 2: Your Actions: By informing the neighbor of the encroachment, you've taken steps to assert your ownership, which could interrupt the adverse possession process.

No. 3: Good Faith: The neighbor's actions in mortgaging the property using an incorrect description could be seen as acting in bad faith, which may weaken her claim.

No. 4: Tax Payments: Your consistent tax payments on the property strengthen your claim to ownership and weaken the neighbor's position.

No. 5: Local Laws: Adverse possession laws vary by jurisdiction, so the specific laws in your area would need to be considered.

Given these factors, it seems unlikely that the neighbor would prevail in an adverse possession claim. However, resolving this situation may require legal action on your part. You need to consult with a real estate attorney as I am not an attorney. They can provide an accurate assessment of your legal position and guide you through the appropriate steps to resolve this issue.

Remember, while the neighbor's claim through adverse possession seems weak, legal proceedings can be unpredictable. Gathering all relevant documentation, including survey results, tax records and any communications with the neighbor, will be essential in building a strong case to protect your property rights.

Richard Montgomery is a syndicated columnist, published author, retired real estate executive, serial entrepreneur and the founder of DearMonty.com and PropBox, Inc. He provides consumers with options to real estate issues. Follow him on Twitter (X) @dearmonty or DearMonty.com.

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