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  1. #1

    Exclamation New Home, Survey says its ours, neighbor doesn't

    We have just closed on a home in Kansas. There is an old unmaintained fence on our property. The legal survey states the old fence is over 17' away from the property line. Our neighbor has sent us a letter, from his attorney, stating he believes the land up to the fence, not the legal property line, belongs to him. He believes this because a (non-legal) survey was done incorrectly in previous years (since 2001).

    The lawyer mentioned in the letter "adverse possession" and that the old fence had been up for over 15 years. My understanding is this man has only owned the property for a short period of time (less than 2 years).

    The Kansas Statute States: "No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years."

    My question is, can I take this literally, in that this neighbor will have had to own the property 15 years? Or is it just that everyone who's owned both properties has to be under the assumption that the land has belonged to his side for the last 15 years? We're going to acquire our own Real Estate Attorney soon. However, I just wanted to hear others thoughts and insight. Thanks!

  2. #2
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    Default Re: New Home, Survey says its ours, neighbor doesn't

    There's probably 'tacking' - that is, if he can show his predecessor in interest adversely possessed the land, he can add that period of possession to his own to satisfy the statute.

    Your choices are basically to take down the fence, move it, and reclaim your land (at risk of litigation), or to acquiesce and effectively give up your claim to the land. It's wise to consult a lawyer, but if I were at risk of losing seventeen feet of land between a fence and the property line I would take down the fence and let him decide if he really wants to sue me.

    Will your title insurance policy help with this?

  3. #3

    Default Re: New Home, Survey says its ours, neighbor doesn't

    I have never heard of a non-legal survey? A survey can only be performed by a licensed surveyor which makes it legal. If you take down the fence and he sues you are both looking at a lot of $$$. What do the previous owners of both properties say? Do you know who put up the fence? What was the use of the strip?

  4. #4
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    Default Re: New Home, Survey says its ours, neighbor doesn't

    Quote Quoting lwpat
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    I have never heard of a non-legal survey? A survey can only be performed by a licensed surveyor which makes it legal. If you take down the fence and he sues you are both looking at a lot of $$$. What do the previous owners of both properties say? Do you know who put up the fence? What was the use of the strip?
    Some states have statutes requiring surveys to be done certain ways. Possibly that is what the poster is talking about.

  5. #5

    Default Re: New Home, Survey says its ours, neighbor doesn't

    Quote Quoting Mr. Knowitall
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    There's probably 'tacking' - that is, if he can show his predecessor in interest adversely possessed the land, he can add that period of possession to his own to satisfy the statute.

    Your choices are basically to take down the fence, move it, and reclaim your land (at risk of litigation), or to acquiesce and effectively give up your claim to the land. It's wise to consult a lawyer, but if I were at risk of losing seventeen feet of land between a fence and the property line I would take down the fence and let him decide if he really wants to sue me.

    Will your title insurance policy help with this?
    To be honest, I'm unclear on the title insurance. I've talked with the title company. Their position is consistant with the belief the land is ours. As is the county's understanding, and the "legal" surveyor's understanding.

    As for past owners and neighbors thinking the fence line is the property line. I believe the survey done in 2001 (incorrectly) was the starting point, but I don't know for sure. It does appear the old fence has been up for some time, its a barbed wire fence and it appears ready to fall over. It will also be hard to say if the owner/neighbor before this neighbor thought it was his, as he has died.

    Another question; We received the letter from his Attorney in early August. Do we have a certain amount of time to respond before his statement just becomes true? Or will he have to "sue" us for the land?

  6. #6

    Default Re: New Home, Survey says its ours, neighbor doesn't

    Kansas must be this way as well. I know the survey done in 2001 was not a "legal" survey. I also know the survey become legal by certain parties being present, and by paying a lot more for it. (850, as opposed to 125 for a regular one). I'm not sure of any differences past that.

  7. #7
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    Default Re: New Home, Survey says its ours, neighbor doesn't

    Quote Quoting cassandramdawson
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    We received the letter from his Attorney in early August. Do we have a certain amount of time to respond before his statement just becomes true? Or will he have to "sue" us for the land?
    If he's claiming adverse possession, delay isn't your friend. But one way or another, if you presently have title, he can't complete his obtaining title by adverse possession without taking you to court.

  8. #8
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    Default Re: New Home, Survey says its ours, neighbor doesn't

    Title insurance generally does not cover boundary disputes (unless you have a survey endorsement...highly unlikely.)

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