How to File for Adverse Possession for My Own Backyard

[wematanya]

My question involves real estate located in the State of: CA
I purchased my home in August 2006. My home's backyard inclosed and fenced with a nice concreted patio, fountain and hot tub which is one of the main reasons for my purchase decision. There were no disclosures that the property line may be incorrect.
I just received a letter from the daughter of the home owner directly behind me. She informed me that her mother had passed away and that she is preparing the home for sale. In doing so, she hired a surveyer who surprised her by informing her that my fence and upper patio level is encroaching on her propertly. The home owner had never said anything to me regarding this, nor did the previous home owner who sold me the property. I have planted plants, installed drip irrigation and there has never been any doubt that this area is my backyard. I do not know when the patio or concrete fence was constructed - I am trying to contact the previous owner to verify this. It will be very expensive and distroy the main reason for my home purchase. I would like to claim adverse possession. I am one month short of living here 5 years but believe that I can tack on the previous owners time as well. This patio and fence have been in place for a long time. I am planning on contacting my title company to discuss but wonder if I should secure a lawyer and start the process to claim adverse possession. I had no idea that the home sold to me was misrepresented if the neighbor's hired surveyor is correct in his assessment. How should I deal with this?

[Mr. Knowitall]

How significant is the encroachment? Leaving issues of easements and adverse possession aside for the moment, often when there would be significant cost or 'waste' involved in correcting an encroachment, a court will permit the continued intrusion perhaps with the caveat that the encroachment end at such time as the intruding structure is removed or replaced. Also, as you implicitly note, it's possible that your neighbor's survey is incorrect - more likely if it's simply a mortgage survey.

You would file for adverse possession by filing a complaint that properly pleads that cause of action, serving a summons and complaint on the defendant, then litigating the case through the court in which it is filed. If it needs to be said, most people who attempt this retain a lawyer.

[wematanya]

Thank you for the reply. The implied encroachment is about 7 feet. So not a minor matter. If the survey is correct, and this was not disclosed to me when I purchased my home. I was shown the home and backyard as it currently exists, can you suggest other outcomes or possible resolutions if the neighbor involved wants to work together to fix this matter?
I know that ignorance is not a legal excuse but this matter is completely unexpected and has blindsided me. People here do not normally hire a surveyer when purchasing a home especially when the yard was enclosed in such an obvious and permenant manner. My back fence is actually a retaining wall which if removed would probably set this neighbor's house at risk. The homes are built into a hill.

[eapls2708]

Yes, get an attorney immediately. You should also have another survey done as a second opinion. Boundary surveys are not often cut and dried technical exercises resulting in a very definite line all surveyors would agree on, but more often are a study of documentary and physical evidence. If a surveyor who may be an excellent measurer but is not very familiar with the rules regarding boundary evidence performes a boundary survey, he may rely on evidence of lesser value (recited dimensions in a deed are normally among the lowest) over evidence of higher value (monuments of prior surveys, and sometimes, even long standing lines of occupation - fences, edges of patios, etc.). Find a surveyor whose main practice is boundary surveying as opposed to construction.

California does allow tacking, so it is when the improvements were built, not when you purchased the property that counts for the time. But before you go to AP, ensure that the survey was correct by having your own performed.

[LandSurveyor]

A possible encroachment of seven feet is quite significant.

It falls outside of what we surveyors would consider to be a disagreement over measurement methods and results.

By all means get a survey of your own for verification or disagreement. But understand the legal task of the surveyor. If a surveyor goes out to a parcel, runs out the deed calls or plat dimensions, and finds expected marks reasonably placed there by his predecessor in surveying the parcel, he/she has completed the duty. The duty is also fulfilled by examining as many adjacent parcels as necessary to reach a conclusion of reasonableness. It is when few or none of these marks are found, or that they do not reasonably match the recorded description, that the surveyor is tasked with looking for other evidence as to where the original intended boundary was to be placed. In my experience, these situations form a minority of my boundary work.

A discrepancy of seven feet on what appears to be a residential lot is a huge red flag to a surveyor. When you have your own surveyor investigate this, let him/her know about the recorded discrepancy and that you may be pursuing a claim which does not match the recorded title.

Surveyors are never in a legal position to "award" land not contemplated as a transfer in an original conveyance. In court surveyors are expert witnesses only as to matters of fact, not matters of law, except where their state case law allows them an opinion.

Surveyors help juries determine the facts of a case; attorneys and judges apply the law to the determined facts for a judgement.

Don't assume that a surveyor you engage will be an "advocate" for you simply because you are paying the bill. A surveyor can never be an advocate for you in the same sense that an attorney can be.

In an AP case the surveyor is only one of the potential witnesses as to matters of fact, all of which you will have to prove in court to win an AP claim. If it turns out that you need to claim the ground by AP, get a good attorney and budget some money for it. The entire burden of proof will be on you. A surveyor's opinion that you have won an AP claim is without effect and possibly practicing law. All of the facts required to prove an AP claim do not all fall within the scope of a surveyor's investigative duties and powers.

If it turns out that the neighbor's surveyor was in error, you are in a far better position which can likely be solved by talking it over. In any case-

Good Luck!

[eapls2708]

Good explanation LS. It clarifies what could have been misunderstood in my last post. In CA, whether a 7 foot discrepancy along a line is possibly a matter of evidence which could place a line in a different (7' +/-), or whether that is unlikely and there is simply 7' of encroaching improvements over a reasonably identifiable line, can depend upon what part of the state one is in.

If these parcels are in urban or suburban areas and one or both are lots in a residential subdivision surveyed and filed less than 40 or 50 years ago, 7' of discrepancy is unlikely to be a matter of missing or misinterpreting evidence. If these parcels exist in a rural or semi-rural area and there has been a history of disagreement between surveyors as to the true location of Public Lands Survey System corners upon which the parcels may be based, it may very likely be a misinterpretation of evidence. Such discrepancies are not very common in some of the areas I survey in (Sacramento & Bay Area), but are not at all rare in other areas I work in (Sierra foothills & mountains).

Wematanya, the surveyor you hire should be able to tell you how common such discrepancies are in the area of your property, and upon inspection of other survey records in the area and of your description, may be able to tell you if a discrepancy of such magnitude is unlikely in the case of your lines.

As LS stated, a surveyor is not an advocate. Our job as surveyors is not to arrive at the best result for our client which has some basis in fact, but to find the location of the true line where it originally existed according to the best evidence available, regardless of who, if anyone gains advantage by that location. Another way to put it is that regardless of who pays the bill, we need to approach the job without bias and place the original boundary as a court of competent jurisdiction would.

As to AP or other unwritten rights, surveyors do not have the authority to recognize the validity of title under such rights. It is our place to recognize that such rights may exist and to identify and map the physical evidence which may indicate those rights.

If it is the case that the original boundary is verified to be as the other surveyor identified it, a good administrative remedy which would likely be far less expensive and certainly less confrontational than a case for AP, would be a Lot Line Adjustment. This is a process that your surveyor can help you with, and it goes like this: You and your neighbor agree for you to purchase from her the land covered by your improvements or enclosed by your fence. Your surveyor writes a description of the property to be transferred, and writes new descriptions of the resultant parcel shapes to be included in new deeds for your properties. Since this will represent a new line or set of lines which do not appear on a previous record map, your surveyor will prepare and file a record of survey drawing reflecting the new boundary. The drawing and deeds get filed and it's done. Everyone goes on with the peaceful enjoyment of what they've been using.

The first critical step of that is that you and your neighbor need to agree on the idea of purchase and the amount. Depending upon how your properties are currently described and/or how they are assessed, it may or may not preclude AP. If your properties are described as certain lots of certain subdivisions, and the original lines and points of that/those subdivisions can be readily located by a surveyor, it is very difficult to show that you were paying taxes on a portion of the neighboring lot. If the parcels are not so described, and if the assessments mention fences and/or other improvements, it may be such easier to show that you were paying taxes over all property occupied as opposed to just that reflected by your deed description. In case you may have a potentially valid AP claim, you may want to make it clear that your proposal to purchase the portion of property and acquire written title to it by the LLA process is made simply as a more economical and less adversarial option to the legal action necessary to perfect your (potentially) valid claim by possession and is not an admission that any claim you may have is not valid. Talk to your attorney about that one. Just be aware that if your neighbor is agreeable to an LLA, it will be far less expensive for both of you than fighting over the property in a case asserting a claim of AP by you with a countersuit for ejectment from her.

This will likely take some diplomacy to convince your neighbor that an LLA is in both your interests. If there are lenders involved, your lender should have no objection because the end result is a more valuable property in size, in that the existing improvements and their corresponding value are preserved, and that any cloud on the title will be removed. If your neighbor has a lender, they may want some compensation for any perceived decrease in value of that property. Unless the portion of the land in question affects the usefulness of her parcel in some way, that value may be quantified as a per sq. ft. amount. They may also need to be convinced of the likelihood of a valid claim on your part which could result in title by AP or in a prescriptive easement for long existing improvements. Once convinced that the claim is valid, or at least that it would cost more than the land is worth to defend title in court, or simply seeing no significant change in value to your neighbor's parcel, her lender would probably agree to the LLA simply to remove cloud on the title.

I would suggest pursuing an amicable solution 1st, but doing so wisely so that you are not closing the door on other options should the amicable path be closed to you.

Good luck.