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  1. #1
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    Sep 2013
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    Default Ejection by Title Owner of Disputed Property

    My question involves real estate located in the State of: New York
    This is a question regarding property my Uncle has been occupying for 15 years.
    My Uncle, the adverse possessor, bought the property and used the property behind the existing fence for 15 years. Now, it's comes to light this encroaches on the title owner's property. In all this time he didn't try to expel my Uncle or the tenant who's been there for all those 15 years. So now it's subject to a lawsuit which he's preparing for.

    He was served an order a few days ago to go appear in court, I believe, not 100% sure what was served/when (I'll try and find out). Now, this is a little infuriating, but the lawyer, who's quite old, basically forgot to go to court or, at least that's what he said. So now, the title owner comes and jeers at the tenant that he's coming to knock down the wall tomorrow (there's a wall behind the fence) to get to the land, basically, I guess evicting him/my Uncle. I don't know as a matter of fact that he has such an order, but I'd like any advice on offer if he does and comes tomorrow.

    The tenant himself was not served any papers on this matter, and so I believe he would have rights, but this is a complicated situation.

    It's kind of a crappy situation because of the sheer incompetence by the lawyer.
    Sorry if it wasn't 100% clear. I've surely glossed over some details, so feel free to ask anything, and thank you.

  2. #2
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    Oct 2006
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    Default Re: Eviction by Title Owner of Disputed Property

    Quote Quoting Crunch2600
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    My question involves real estate located in the State of: New York
    This is a question regarding property my Uncle has been occupying for 15 years.
    My Uncle, the adverse possessor, bought the property and used the property behind the existing fence for 15 years. Now, it's comes to light this encroaches on the title owner's property. In all this time he didn't try to expel my Uncle or the tenant who's been there for all those 15 years. So now it's subject to a lawsuit which he's preparing for.
    The above part is unclear. Can you try explaining it better?

    He was served an order a few days ago to go appear in court, I believe, not 100% sure what was served/when (I'll try and find out). Now, this is a little infuriating, but the lawyer, who's quite old, basically forgot to go to court or, at least that's what he said. So now, the title owner comes and jeers at the tenant that he's coming to knock down the wall tomorrow (there's a wall behind the fence) to get to the land, basically, I guess evicting him/my Uncle. I don't know as a matter of fact that he has such an order, but I'd like any advice on offer if he does and comes tomorrow.

    The tenant himself was not served any papers on this matter, and so I believe he would have rights, but this is a complicated situation.

    It's kind of a crappy situation because of the sheer incompetence by the lawyer.
    Sorry if it wasn't 100% clear. I've surely glossed over some details, so feel free to ask anything, and thank you.

  3. #3
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    Sep 2013
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    Default Re: Eviction by Title Owner of Disputed Property

    Quote Quoting llworking
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    The above part is unclear. Can you try explaining it better?
    Sure. My Uncle purchased the property 15 years ago, and soon after rented out the part of the property in dispute. He's been the same tenant for all this time. He assumed it was his since it was behind the fence the previous owner had put up.

    The property is part of a gated facility and the two properties are ultimately separated by a body of water meeting the street. According to the title owner, his property extends over the water onto a portion of this gated facility.

    All in all, every lawyer I've spoken to says this is a strong case for adverse possession since he, nor his predecessor, made any attempt to reclaim it as well as the conditions of our occupation/use of the property.

    Sorry, I hadn't updated sooner, was speaking with another lawyer to try and patch this up.

    Anyway, to update, the guy came in and knocked down the wall this morning from the street onto the property. He's a construction guy, so he has the equipment. He basically parked his bulldozer on our property. Does the tenant (also in construction, with trucks and hardware) not have any rights? He hasn't attempted to expel anyone from what he thinks is his property since 2002, and now he's tearing down walls all within a few weeks. I feel like this is criminal what he's doing.

  4. #4
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    Default Re: Eviction by Title Owner of Disputed Property

    Quote Quoting Crunch2600
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    Sure. My Uncle purchased the property 15 years ago, and soon after rented out the part of the property in dispute. He's been the same tenant for all this time. He assumed it was his since it was behind the fence the previous owner had put up.

    The property is part of a gated facility and the two properties are ultimately separated by a body of water meeting the street. According to the title owner, his property extends over the water onto a portion of this gated facility.

    All in all, every lawyer I've spoken to says this is a strong case for adverse possession since he, nor his predecessor, made any attempt to reclaim it as well as the conditions of our occupation/use of the property.

    Sorry, I hadn't updated sooner, was speaking with another lawyer to try and patch this up.

    Anyway, to update, the guy came in and knocked down the wall this morning from the street onto the property. He's a construction guy, so he has the equipment. He basically parked his bulldozer on our property. Does the tenant (also in construction, with trucks and hardware) not have any rights? He hasn't attempted to expel anyone from what he thinks is his property since 2002, and now he's tearing down walls all within a few weeks. I feel like this is criminal what he's doing.
    Your uncle needs an attorney like yesterday!!! He needs to get an injunction to get the guy to stop until something is decided in court.

  5. #5
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    Default Re: Eviction by Title Owner of Disputed Property

    Quote Quoting Crunch2600
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    My question involves real estate located in the State of: New York
    My Uncle, the adverse possessor, bought the property and used the property behind the existing fence for 15 years.
    He never saw a survey? The fence you're describing is at the actual boundary line?

    How much land are we talking about - how big is your uncle's actual property, and how big is the area of land behind the fence that he was hoping to claim?
    Quote Quoting Crunch2600
    Now, it's comes to light this encroaches on the title owner's property. In all this time he didn't try to expel my Uncle or the tenant who's been there for all those 15 years.
    Are you saying that the owner of the neighboring property knew about the situation and ignored it? That he didn't know about the situation? Something else?
    Quote Quoting Crunch2600
    He was served an order a few days ago to go appear in court, I believe, not 100% sure what was served/when (I'll try and find out). Now, this is a little infuriating, but the lawyer, who's quite old, basically forgot to go to court or, at least that's what he said.
    You would need to tell us what the order says. It sounds like the lawyer failed to appear and defend, that a default was entered, and that your uncle failed to appear for a hearing on the remedy such that the court ordered ejectment. The order to appear could have been an order to show cause why he had not complied with a prior order that held that the neighbor owned the disputed area of land. The facts matter.

    Did your uncle actually file a counterclaim for adverse possession, or was this case proceeding solely as a trespass / ejectment action with no counterclaim filed?
    Quote Quoting Crunch2600
    So now, the title owner comes and jeers at the tenant that he's coming to knock down the wall tomorrow (there's a wall behind the fence) to get to the land, basically, I guess evicting him/my Uncle. I don't know as a matter of fact that he has such an order, but I'd like any advice on offer if he does and comes tomorrow.
    Quote Quoting Crunch2600
    View Post
    Sure. My Uncle purchased the property 15 years ago, and soon after rented out the part of the property in dispute. He's been the same tenant for all this time. He assumed it was his since it was behind the fence the previous owner had put up.
    Are you stating that this entire matter is the tenant's assumption that the land extended beyond the fence line, even though your uncle made no such representation to him?
    Quote Quoting Crunch2600
    All in all, every lawyer I've spoken to says this is a strong case for adverse possession since he, nor his predecessor, made any attempt to reclaim it as well as the conditions of our occupation/use of the property.
    How did this become "our"? You told us about your uncle's ownership, a tenant's use and possession.... How do you come into the scenario?
    Quote Quoting Crunch2600
    Sorry, I hadn't updated sooner, was speaking with another lawyer to try and patch this up.
    Generally speaking, there is a window of time after a judgment is issued during which a party may file an appeal or seek other relief. If no action is taken within that window, the judgment becomes final and the judgment holder can enforce it. It's not clear from your description of events what order(s) the court issued, or when - but this is not a situation that will get better for your uncle with the passage of time. If he wants to try to overcome the consequence of nonappearance, seek reconsideration or appeal, time is of the essence.
    Quote Quoting Crunch2600
    Anyway, to update, the guy came in and knocked down the wall this morning from the street onto the property. He's a construction guy....
    Is he the same person who has owned the land over the entire fifteen year period?

    Your uncle can tell the neighbor to (a) stay off of his land and (b) not to leave equipment on his land (although (a) covers (b)).
    Quote Quoting Crunch2600
    Does the tenant (also in construction, with trucks and hardware) not have any rights?
    He has whatever rights his lease provides, between himself and your uncle.
    Quote Quoting llworking
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    He needs to get an injunction to get the guy to stop until something is decided in court.
    It sounds like we're at the end of a lawsuit, not the beginning.

  6. #6
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    Default Re: Eviction by Title Owner of Disputed Property

    My question revolves around what improvement to the property have been constructed. Walls and simple maintance of property does not count toward adverse possession of property.

    What you have described is an adverse possession without written documentation (NY RPA sec. 522). However, non-structural encroachments are not considered adverse in nature (NY RPA sec. 543). So, what structure is on the disputed property? A wall or fence isn't enough.

  7. #7
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    Default Re: Ejection by Title Owner of Disputed Property

    So your argument is really that your uncle had no duty to determine what the property lines are of the property he bought after owning it all these years and the neighbor is just a big meany?

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