Results 1 to 5 of 5
  1. #1
    Join Date
    Feb 2006
    Location
    North Carolina
    Posts
    5

    Question Adverse Possession in North Carolina

    My question involves real estate located in the State of: North Carolina

    I purchased a home in an active historic district in North Carolina in January 0f 2005. I did not have a survey performed, and there is not a survey on file for the property (or for the adjoining property). The county plat shows the lot as being 66' x 150'. The back half of the northern line, the eastern line, and 2/3 of the southern line are enclosed by a chain link fence. There is an 11' gravel driveway and garage on the northern side of the property, and this is the line that is in contention with my neighbor, Mr. Smith. The driveway runs all the way to the foundation of my home.

    The garage was built circa 1930, and is an open-door, galvanized steel sided building with the original standing seam tin roof; it is considered "historically contributing" by the historical commission. Its northern side runs directly in line with my driveway to the street.

    It appears from anecdotes that the first divider of the property was a hedge anchored by 1 or 2 large trees. Prior to 1960, Mr. Smith's parents got into a dispute over the trees with the daughter of the original owners of my home, and they had the trees removed. The owners of my house then had the hedge removed in retaliation.

    Sometime in the 1990's, the then-owners planted several Bradford pear trees and installed railroad ties and mondo grass to delineate the property line, again running directly to the edge of the garage. Most of the trees were lost to wind and over-crowding, and the railroad ties rotted and became unsightly and unsafe.

    In early 2008, I approached Mr Smith about my removing the last Bradford pear tree, the railroad ties, and themondo grass, and subsequently putting down large edging stones for a border. Mr. Smith had no problems with this plan. At this time, we both agreed that neither of us were certain where the actual line was, but we agreed that it was logically the historical line and the edge of the garage. I had the tree removed and the grass and ties dug up. I buried 4 of the edging stones, and asked Mr. Smith to approve their placement. He said they were fine, and the rest of the edgers were installed up to the corner of the garage and several more loads of pea gravel were dumped in the driveway.

    In late summer 2008, I decided to have the chain link fence removed in the back, north-east corner, in order to have a large wooden privacy fence built and a patio installed. I spoke to Mr. Smith about this, and he agreed that my contractors could use his land for driving equipment, and I would get my contractors to clean up that portion of his badly over-grown yard in the process. We then took down 2 trees on the line (we agreed that they were mine) and the fence, and I paid to have his yard cleaned up and all the debris was taken to the landfill at my expense.

    At this point, I decided to have a survey performed before the privacy fence was installed. The surveyor put out flags in his preliminary measurements to indicate that the property line was actually 6"-7" over on Mr. Smith's line. He never installed permanent markers, he never drew a map, and he never sent a bill for his work. Mr. Smith was very angry about the placement of the flags, and he told me to move my garage and my driveway to the appropriate line. I told Mr. Smith that i doubted even a court would require me to move a 75+ year old garage over 7". We then went ahead with the privacy fence installation and the patio, after obtaining the necessary permits; we did move the fence (which ties directly into the back wall of the garage) in approximately 15" inches.

    At this point, I offered Mr. Smith $6,000 for the .0020087 of an acre (87.5 sq ft) for the land, solely in order to resolve any possible future conflict. He refused, saying that he would never relinquish an inch of his property to anyone, for any reason.

    I have since married. Mr. Smith informed my husband this morning that he intends to install a privacy fence along the property line, even if he installs it in our driveway. He says that he has contracted for a survey. He will be required to get a certificate of appropriateness from the historic commission for the fence (although I am not sure if this will be a major or minor permit (I would be informed if it is a major permit, as this requires a public commission hearing and discussion from the floor)).

    We believe that we meet the legal criteria for adverse possession in North Carolina, assuming that this 6-7" strip of land really is not ours. 1 - "Open and Notorious Use" - we have engaged in open use of the property, we have improved and maintained it, and we use it in the manner than any other owner would use. 2 - "Hostile Use" - I do not believe that we meet the "trespass test" and I am not sure if we meet the "objective" test. I do, however, believe we meet the "good faith" test, as we have 100% believed that the actual line was the line of the driveway and garage since I purchased the property. 3 - "Continuous and Exclusive (with Tacking)" - The property line has been considered to be the edge of the driveway and garage since the 1930's, with no apparent dispute from the adjoining landowner.

    We would like to be proactive in this situation, rather than reactive. We have tried to maintain a cordial and respectful relationship with Mr. Smith, and after today, we have realized that this is one-sided.

    Are we better served to make him PROVE that our driveway and garage are over the property line and THEN try to enact adverse possession? Is filing for adverse possession saying that we ADMIT that we are in the wrong? What would be the best way to handle this?

    Thanks in advance.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Adverse Possession in North Carolina

    Mr. Smith has effectively put you on notice that you are going to have to roll over or get an attorney, assuming his survey indicates what you suspect.

    If you don't want to roll over, I would recommend that you get an attorney ASAP and get a temporary restraining order in place to prevent the erection of the fence. This will stop things and allow time for you and your attorney to come up with the best approach for you; adverse possession, boundary by acquiescence, or whatever the attorney recommends. A garage in place 75+ years is not going anywhere.

  3. #3
    Join Date
    Feb 2006
    Location
    North Carolina
    Posts
    5

    Default Re: Adverse Possession in North Carolina

    Thanks, landsurveyor. We did find out that an application for a certificate of appropriateness is a major permit, so there will have to be notification of the public, and a public hearing; we feel pretty good that this acts like a temp RO against his fence, as he can't start the project without the permit. We also feel reasonably confident that he can't get a permit until something is resolved about the line.

    It boggles my mind that someone wouldn't accept $6,000 for a 7" strip of land, if for no other reason than to maintain a cordial relationship with a neighbor! We are getting ready to build a fence with our southern neighbors, splitting the cost and finishing the fence on both sides so we both get a "pretty" side, and we are locating the fence in the back corner 5' onto OUR line, because of 1) a tree 2) the existing chain link fence line and 3) my neighbor's iris bed that would be a shame to dig up. It just seems a much easier and better solution to compromise, than to fight and maintain hard feelings!

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Adverse Possession in North Carolina

    We also feel reasonably confident that he can't get a permit until something is resolved about the line.
    Unless you make an issue of it before the permit process starts, the survey may be what resolves it. Doing so will also give you negotiating leverage with the neighbor by clouding the permit process. As adamant as he seems, he may well be open to negotiation at some point. I wouldn't rule it out. Once he realizes that you may be sending the $6k to an attorney, instead of himself, and getting the 7" strip anyway, he may be willing to talk some more.

    Good luck!

  5. #5
    Join Date
    Oct 2008
    Posts
    26

    Default Re: Adverse Possession in North Carolina

    According to how I understand the principals of adverse possession, your situation is not adverse possession, it is acquiescence and that is easier for you to prove in a court of law. Adverse possession requires several minimum qualifying points and you must meet ALL of the requirements or you will not get a judgement in your favor. Trespass to try title is a much easier process by which one can acquire title to disputed lands. Either way, you and your neighbor are gonna end up spending way more than $6,000.

    By the way, if you paid that surveyor for a boundary survey, he came nowhere close to the minimum standards of N. Carolina surveying. I would have a talk with him.

    1. Sponsored Links
       

Similar Threads

  1. Expungement and Sealing: North Carolina Expungement of Underage Alcohol Possession
    By amclark92 in forum Criminal Records
    Replies: 1
    Last Post: 07-09-2011, 10:31 AM
  2. Adverse Possession: Claiming Land by Adverse Possession in North Carolina
    By alphamale723 in forum Real Estate Ownership and Title
    Replies: 8
    Last Post: 05-26-2011, 11:45 AM
  3. Adverse Possession: Adverse Possession In South Carolina
    By captain in forum Real Estate Ownership and Title
    Replies: 6
    Last Post: 06-16-2008, 01:29 PM
  4. Drug Possession: Expungement Of Possession Charge In North Carolina
    By ljg12220 in forum Criminal Charges
    Replies: 1
    Last Post: 05-24-2008, 06:31 AM
  5. Drug Possession: North Carolina Possession Charge
    By KPjames in forum Criminal Charges
    Replies: 1
    Last Post: 03-20-2008, 10:00 PM
 
 
Sponsored Links

Legal Help, Information and Resources