Neighbor Suing for Adverse Possession

[BenT]

No it doesnt say adverse possession in the court papers the lawyer sent to us - the attorney says it is a very uphill battle for him to win - my lawyer said that he is trying to prove adverse possession after he read the complaint - I have not talked to him personally but we have tried to negotiate between the attorneys - and he doesnt want to budge - in the complaint there is a lot of stuff showing the driveway has been there for many yrs by showing who the previous owners were - this is really crazy all this over about 3ft of gravel - if you measure from the property line he still has a little less than 10ft of driveway width - I just hope the judge sees through all this

Interestingly enough - much like cars people see houses & land as a part of their personal space. Any affront to that physical space is deemed a personal insult. So, your neighbor rather than seeing it as a 3' piece of gravel sees it as something else. It's not logical, but it's a concept I use to frame how crazy people get about stuff like this. On your side - you have title of record which essentially means he's using the area without your permission. I like to call it trespassing.

If the matter is already moving to court? - the plaintiff (neighbor) will have to prove a WHOLE lot of things and it will get very costly for him as he will have to furnish facts - pictures, receipts, hostile use etc.

[jk]

413.010 Action for recovery of real property -- Fifteen year limitation.
Subject to KRS 411.190(8), an action for the recovery of real property may be brought only within fifteen (15) years after the right to institute itfirst accrued to the plaintiff, or to the person through whom he claims.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 306, sec. 1, effective July 15, 2002. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2505.

Now, there is an exception to limiting the time accrued to the current owner and allowing the tacking of previous possessors but it requires what is called privity and I surely hope Ron or one of the other posters can explain privity much better than I and what it would take for it to apply here.




here are a couple cases (from Kentucky) that speak to privity and adverse possession:

http://scholar.google.com/scholar_case?case=13873923098341323179&q=adverse+p ossession+tacking+privity&hl=en&as_sdt=4,18

http://scholar.google.com/scholar_case?case=18131957844452185688&q=adverse+p ossession+tacking+privity&hl=en&as_sdt=4,18

http://scholar.google.com/scholar_ca...en&as_sdt=4,18

[kyshriner]

Well it looks like we are going to have to go before a judge to settle it because he is not willing to share the area - willl keep you posted as to the outcome - thanks for all the help - Jim

Oh yes an also the last response i received from his attorney stated that he wants a precriptive easement or adverse possession and that portion of my property deeded to him - also in the deed restrictions for our properties it states #2 no lots shall be divided and #3 no main building shall be closer than 10ft to the side property line and if he wins it will put me out of compliance with these restrictions and also he is out of compliance because he has an attached garage which is approximately 2ft from the side property line

[BenT]

Sorry to hear that it might have to go to court? You seem to be doing all that you can to ease the situation.

That said - have you been officially served? If not, I would speak to my representing lawyer and see about filing a complaint to Quiet Title in a LAND* court ahead of the neighbor. In this case you are bringing action against him to remove a cloud on your title. The bulk of the work will be upon the neighbor to prove his case, in addition to eating lawyer fees which can be significant for a measly piece of land.

The restrictions could become a factor should it go to court. At the end of the day proving his case will not be easy and perhaps he has some mental clarity come 2012.

* optimal court in your area where the judge knows something about land / real estate laws

[kyshriner]

Yes I got served with the papers from his attorney and have 20 days to respond and my attorney is working up the response - when I signed the papers in oct I also took out title insurance and am filing a claim with that company to pick up the fees I incurr

[BenT]

Best with your situation. I do hope your title insurance (hopefully enhanced) picks up the cost. Please keep us apprised and I hope you prevail.

Sincerely,

Ben T

[kyshriner]

thanks Ben for all the info - will keep you posted as to the outcome - Jim