Removal of fence - Posted by Susan

Posted by susan on July 13, 2005 at 17:27:49:

thanks Eric…talked to owner #3 he says fence wasn’t there while he owned it BUT… BUT … BUT!!! he also said that he didnt realize his land went as far as it did. He thought he only had what the house sat on. Yes he had a survey BUT not everyone here in wonderful Alabama are bright! He also said that affidavit he signed he thought it meant he DIDNT give anyone permission. Scared to try to use HIM in court!! Now if they are sueing us for 27 years of adverse possession, do they have to show continuous, hostile use for the 27 years they are claiming???

Removal of fence - Posted by Susan

Posted by Susan on June 19, 2005 at 08:40:49:

In a property/adverse posession dispute, (not filed yet in court) if the party claiming adverse possession removes their fence from the disputed line and the legal owners of land erect fence on surveyed property line (legal boundary) doesn’t that nulify the adverse possession claim?

Re: Removal of fence - Posted by Bill H

Posted by Bill H on June 21, 2005 at 24:34:44:

Not legal advice, just good common sense and reading of the statutes…

Adverse possession requires thqt you open and notoriously occupy the property and pay the taxes for xxx years depending on your state statutes.

A fence does not qualify as an adverse possession. It most likely would be considered an encroachment.

Good Luck,
Bill H

Re: Removal of fence - Posted by Susan

Posted by Susan on June 21, 2005 at 17:06:27:

Thanks …but what is happening is that my neighbor had a fence up over half of our property and said it was his land…we showed him by having it resurveyed and marked that it wasn’t. He removed his fence. We ran fencing around our property. Now he SAYS that the land is his since he was using it for 10 years and is threating to claim adverse possession. Since he removed the fence and we fenced in according to the survey isn’t his claim to adverse over? The code for adverse and the code for adverse over boundaries can be different. Just trying to get my facts straight so I can TRY to explain it to him. (no guarentees he’ll believe me though. (grin))

Re: Removal of fence - Posted by Tom-FL

Posted by Tom-FL on June 21, 2005 at 19:38:37:

Well, he certainly can’t claim it now since he no longer posesses it. What state are you in? Who has been paying the taxes on that parcel? Who was there first? Was his fence up when you arrived? Did you have it surveyed at time of purchase?

Re: Removal of fence - Posted by eric

Posted by eric on June 27, 2005 at 18:07:21:

Actually, if he met all the elements necessary in that jurisdiction for adverse possession prior to moving the fence, he can likely claim adverse possession because the right arrose as soon as the elements were met. This action of the real owner fencing off the area is what would give rise to a cause of action for quiet title.

Not sure about this jurisdiction, but those that require the payment of property taxes to support adverse possession would likely deny the claim. Many of those same jurisdictions have also eliminated the possibility of a prescriptive easment as it would have the same effect as granting a fee to the enclosed land.

Re: Removal of fence - Posted by Susan

Posted by Susan on June 21, 2005 at 20:41:56:

Thanks…I’m in Alabama …RURAL Alabama… He orginally owned a large farm and sudivided and sold…keeping 2.5 acres for himself. The land in question has been taxed since 1978 on our land/property taxes. (we bought it last year) Yes the fence was up when we bought But did not realized it was on our land because of the way the property is laided out. It APPEARS to go straight back due to tree lines. We walked in and found three corners but couldn’t find one of the back corners. We have since discovered, by the surveying, that what we thought was the east back corner is really the west back corner!!! No survey at purchase went by previous survey and legal. Have had it resurveyed since and the orginal survey is correct. He said since the previous owners didnt use it he figured he could just take it back. This property has had three previous owners before us. We did have a title search done and it came back clean as a whistle.
AGAIN thanks for any and all light you can shed on this mess!!

Re: Removal of fence - Posted by Tom-FL

Posted by Tom-FL on June 22, 2005 at 23:27:01:

Well, I’m not a lawyer and it’s after midnight here, so I didn’t really examine any of these, but they might get you started. One thing that did catch my eye is that a claim has to be made for ten years. You mentioned that he recorded something ten years ago, so you may need to move fast to squash this if he does indeed have any claim. At least you could put the matter to rest permanently. I THINK 6-5-200 (2) is saying he had to pay the taxes for the ten years. Now, 6-5-200 (3)(c) seems to indicate that border disputes are not referenced in the AP section. You might want to check more in detail in the 6-6-280s.

The jump off point for any code is:

Re: Removal of fence - Posted by susan

Posted by susan on June 23, 2005 at 20:06:48:

thanks a million!!! Now an update. Got notice of intent of adverse claim from his attorney. Stated 27 years of use, dating back to when he divided off and sold this parcel. In the 27 years he has moved, removed and reerected fences often, to where ever it suited him. He stated that he had “permission” to do so from previous owners. ( stated this in front of surveyor I might add) Previous owner due to it being a foreclosure sale and divorce filed with the probate court, an Affidavit of Adverse Possession stating his “possession of property was to the Exlcusion to all others except to someone with permission. from 1990 to 2004”

  1. Will this have any bearing on case?
  2. Where the neighbors in dispute owned the land till they divided and sold this parcel in 1978, doesnt this interfere with the coveyant of “the right to quiet enjoyment”?

Yes we are going to lawyer but still trying to do all the research I can!

Re: Removal of fence - Posted by Tom-FL

Posted by Tom-FL on June 23, 2005 at 21:30:03:

Forgive me if I’m a little dense here. He actually filed a notorized statement with the court that he had permission to use the property from the rightful owner from 1990 to 2004?

Using property with the permission of the owner is not adverse and it is not hostile. Further, I believe that common law holds that the statutory time (10 years in AL) needs to be continuous. You just can’t adversely possess a property for a while, then take a 14 year break, and have the previous time counted.

Seems to me his 10 years started over in 2004.

I’m guessing you bought after 2004?

What you really need to find is a good common law description of adverse possession. You won’t find any of that codified in the statutes. As you may have discovered, you read all the statutes and they left you with more questions than answers. The statutes are like the fuzzy dice hanging from the rearview mirror. The actual car was conceived in English common law.

I must be looking at something wrong though. I can’t see why an attorney would even waste his time on this unless there is something else here.

If a good description pops up somewhere, I will send you the link.

Re: Removal of fence - Posted by susan

Posted by susan on June 24, 2005 at 19:51:15:

Tom you are an ANGEL!!! OK the thing that was filed was from the previous owner of OUR land. Not from the neighbor in question. The Neighbor…Mr M was the ORIGINAL owner of of our property…he inherited it from his parents in the end of 1977… in the beginning of 1978 he sold our 1 1/2 acres lot to buyer #1 he sold to #2 in 1980. #2 builds house, gives permission to Mr. M to Use land in question sells house in 1990. (she is no longer alive) Buyer #3 goes though a foreclosure and in order to redeem and sell to us he has to clear up an old “life estate” that the house was on. The attorney had HIM, owner #3, sign an affidavit of adverse possession that stated that he had Exclusive claim to the property with the exception of “someone who had permission” hope you followed that!
You are right about the car being english LOL Feel like I am driving on the wrong side of the road!!!
how about the permission thing … he has stated in front of witnesses that he had permission from #2 never mentions #3 #2 is dead so I guess he thinks she is safe to mention.
Also how about the fact that he is the ORIGINAL owner of property??? Cant seem to find ANY cases where the orginal owner tries to state that the boundary he is hold to ( which gives him half of our land exactly) is the boundary that he has always held??? Doesnt this interfere with the conveyant of quiet enjoyment that does run WITH the land here in Alabama??

Re: Removal of fence - Posted by eric

Posted by eric on June 27, 2005 at 18:19:01:

The permission will kill his claim if he can not show that his possession was adverse to the adjoining owner for the statuatory period. If he did not have permission from #3, then the clock should start clicking in 1990 (when #3 acquired the property). It doesn’t matter whether #3 had knowledge or not, only that he did give him permission. In most jurisdicitons, silence is not deemed to be permission.