Move it or Not?

[welch-time]

He's owned the property for 3 years. Only 17 years to go...

“the possessor must show twenty years of adverse, continuous, exclusive and uninterrupted use of the land claimed.” O’Hearne v. McClammer, 163 N.H. 430, 435 (2012).

[Little Bear]

Originally Posted by welch-time

He's owned the property for 3 years. Only 17 years to go...

“the possessor must show twenty years of adverse, continuous, exclusive and uninterrupted use of the land claimed.” O’Hearne v. McClammer, 163 N.H. 430, 435 (2012).

I wonder if 20 years includes prior owners that also utilized the property as if it were their own?

[Major]

Originally Posted by Little Bear

I wonder if 20 years includes prior owners that also utilized the property as if it were their own?

I believe that in NH a subsequent owner can tack on the adverse use of those who owned the property before him or her.

[MAXUM]

I think this falls squarely on the title company. How can a clean title be conveyed if the building that sits on it is over the property line? This is precisely what title insurance is for.

[joey2665]

Originally Posted by MAXUM

I think this falls squarely on the title company. How can a clean title be conveyed if the building that sits on it is over the property line? This is precisely what title insurance is for.

I agree 100%. I said that earlier, your title insurance policy should have the very specific location of the property being purchased, not just the address.

[swnoel]

New Hampshire’s Requirements for Adverse Possession

There is no single statute in New Hampshire that dictates the elements a trespasser must establish in order to prove adverse possession. Rather, the courts have set forth a variety of such factors over many decades of issuing decisions in individual cases.

As in most states, adverse possession in New Hampshire is established from the nature of a trespasser’s possession and the length of time the person possesses the land.

A trespasser’s possession must be (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (v) continuous for the statutory period (which is 20 years in New Hampshire, under N.H. Rev. Stat. Ann. § 508:2).

In addition to these factors, New Hampshire courts have repeated certain pieces of evidence that are likely to weigh in favor of granting a trespasser adverse possession. These include whether the trespasser purchased the land in good faith; whether the trespasser paid taxes on the property; and whether the trespasser holds a deed that indicates that he or she owns the land. As you can see, these mainly address situations where there was confusion over ownership rather than an outright attempt to take over another person's land. None of these factors instantly turn the case into a “slam dunk,” but they seem to weigh on the minds of New Hampshire judges.

To illustrate these concepts, let's take a hypothetical. Imagine that Amanda and Bob live next to one another in a suburb outside of Manchester. Without a wall between their properties, Amanda begins to put lawn furniture on what is technically Bob’s land. Eventually, Amanda builds an entire patio there. Bob never says anything. The years pass—20 years, in fact. Under New Hampshire’s adverse possession framework, Amanda will likely be successful in establishing an ownership claim to that portion of Bob’s property. Note that she won’t be able to take over all of Bob’s lawn—only the portion upon which she constructed the patio and which she actively used for those two decades. New Hampshire courts would be reluctant to suddenly eject Amanda and her patio after so much time has passed.

[swnoel]

Originally Posted by MAXUM

I think this falls squarely on the title company. How can a clean title be conveyed if the building that sits on it is over the property line? This is precisely what title insurance is for.

It protect you FROM adverse possessions... against you not,the other way around.

[MAXUM]

Originally Posted by swnoel

It protect you FROM adverse possessions... against you not,the other way around.

So I get that is one of the protections it offers - but at the same time the title/deed is supposed to accurately describe the property in question.

I mean common a quick lookup if title insurance yields this result:

Title insurance is a form of indemnity insurance predominantly found in the United States which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans


I'd say in this case it would meet the defective and possible financial loss criteria if it doesn't accurately depict the building is over the property line. In fact if the property happens to have a mortgage on it I'd think the lien holder would be very interested to know that a portion of the property that represents a significant percentage of it's value is not completely on the property as described. They too have a vested interest again if applicable.

If this were me I'd be contacting the NH RE commission if there is a case where there was not accurate and complete disclosure there should be culpability on the part of both the seller and listing agent.

Since I'm not a lawyer or have any professional experience here I'm just looking at this though the context of a lay man's interpretation.

[swnoel]

Originally Posted by MAXUM

So I get that is one of the protections it offers - but at the same time the title/deed is supposed to accurately describe the property in question.

I mean common a quick lookup if title insurance yields this result:

Title insurance is a form of indemnity insurance predominantly found in the United States which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans


I'd say in this case it would meet the defective and possible financial loss criteria if it doesn't accurately depict the building is over the property line. In fact if the property happens to have a mortgage on it I'd think the lien holder would be very interested to know that a portion of the property that represents a significant percentage of it's value is not completely on the property as described. They too have a vested interest again if applicable. My suggestion is to continue to believe the camp is on your land and let someone else prove otherwise.

If this were me I'd be contacting the NH RE commission if there is a case where there was not accurate and complete disclosure there should be culpability on the part of both the seller and listing agent.

Since I'm not a lawyer or have any professional experience here I'm just looking at this though the context of a lay man's interpretation.

I would consider the land mine and use it as has the past multiple owners, who by the way paid property taxes demanded by the town for at least the past 50 years! Apparently the deed indicates the camp is one the land, I would be interested is seeing how far back the deed goes with mention of the camp. Town shows that the camp is on the property in question. I would guess there is nothing recorded suggesting that the camp is on someone elses property including the owners of the adjacent lot. This is a classic case of ownership by adverse possessions! Course getting the advice of a "competent" attorney would be in order.

[welch-time]

First of all let me begin by saying I'm just talking about this stuff from a non-legal, beer drinking, fun loving conversational point of view. BUT I think the whole concept of "Adverse Possession" is theft via trespassing, pure and simple.

It's up to the purchaser to make sure the property in question is everything the seller says it is. If you buy property without getting a current survey, nobody else is responsible for any encroachments, not the real estate agency, not the title insurance company, nobody except the man in the mirror. If you try to blame it on some other entity, I call BS.

(and I'm not implying captT820 did any of these things)

[FlyingScot]

Originally Posted by welch-time

First of all let me begin by saying I'm just talking about this stuff from a non-legal, beer drinking, fun loving conversational point of view. BUT I think the whole concept of "Adverse Possession" is theft via trespassing, pure and simple.

It's up to the purchaser to make sure the property in question is everything the seller says it is. If you buy property without getting a current survey, nobody else is responsible for any encroachments, not the real estate agency, not the title insurance company, nobody except the man in the mirror. If you try to blame it on some other entity, I call BS.

(and I'm not implying captT820 did any of these things)

From a similar bar stool non-accusatory perspective--the reason that adverse possession laws exist is to encourage owners to use and take care of their land. You might imagine a whole much of cases in more populated settings with larger tracts of land where this would be sensible policy, or at least debatable. But unless you believe that small island land owners should be meticulously policing their boundaries, this situation is not consistent with the spirit of the law. So as I reach for another shot, I'm thinking the judge is going to work hard to find against adverse possession. He's probably gonna think it may be the law, but it's BS...

[swnoel]

Just curious how any of you would feel if you've owned a home for 15 years, to suddenly get a knock on your door that your house was built on someone else's land 50 years ago and they demand it gets moved?

[FlyingScot]

Originally Posted by swnoel

Just curious how any of you would feel if you've owned a home for 15 years, to suddenly get a knock on your door that your house was built on someone else's land 50 years ago and they demand it gets moved?

Really bummed out. Then I'd move it. (And that would be the end of having those neighbors over for cocktails.)

But that's not the situation here. No one is asking for the home to be moved, and the home sounds relatively simple to move if someone ever did ask.

In a way, adverse possession advocates are promoting the reverse situation--imagine how you would feel if you owned a home for 15 years, and you suddenly get a knock on your door that a piece of your land is about to be taken by your neighbor and even best case you now need to drop a few thou on a lawyer?

[JEEPONLY]

Great! After 66 posts we find out that this thread is not worth following. It has seemed interesting until the recent disclaimers.

[CaptT820]

All-
Thank you for all of the interest in this subject. I have contacted several surveyors and I’m waiting for quotes. We won’t be able to have the property surveyed for at least another month when the ice goes out. To respond to one of the posts, the owner of the vacant land next door may know about this post, which would be fine with us as we have nothing to hide. I’ll keep everyone updated on what we find out.

[MAXUM]

Originally Posted by CaptT820

All-
Thank you for all of the interest in this subject. I have contacted several surveyors and I’m waiting for quotes. We won’t be able to have the property surveyed for at least another month when the ice goes out. To respond to one of the posts, the owner of the vacant land next door may know about this post, which would be fine with us as we have nothing to hide. I’ll keep everyone updated on what we find out.

Well CapT you seem like a pretty reasonable guy. If it turns out that your camp is on or over the property line hopefully you and your neighbor can find a reasonable and equitable solution. While the law may allow for adverse possession I personally would seek an alternative means to settle this.

Good luck!

[CaptT820]

All-
Just to update our property line issues with our camp being over the adjoining property line, we have solved the problem. Our camp would've been grandfathered in as it was built in 1910, and the lot lines were drawn in 1968, but we didnt want to go through getting a variance and all that. The neighbor put the property up for sale, so we bought it. Now our camp is firmly on our own land and we don't have to worry about being over the lot line.

[camp guy]

So,...the last time you went to a restaurant and had a great meal did you buy the restaurant? Probably not terribly funny, but in the context of your update it seems okay.

[swnoel]

Originally Posted by CaptT820

All-
Just to update our property line issues with our camp being over the adjoining property line, we have solved the problem. Our camp would've been grandfathered in as it was built in 1910, and the lot lines were drawn in 1968, but we didnt want to go through getting a variance and all that. The neighbor put the property up for sale, so we bought it. Now our camp is firmly on our own land and we don't have to worry about being over the lot line.

Glad things worked out!

[welch-time]

Originally Posted by Major

I believe that in NH a subsequent owner can tack on the adverse use of those who owned the property before him or her.

It's possible that the owner of the vacant lot granted permission to the previous owner to allow the mis-placed camp on the lot line. This would have protected him against any claims of adverse possession. This could have been scribbled on an old napkin. I bet most of the old island properties were bought and sold without surveys (cash sales).

And now since he's posted this story on a public forum, I wouldn't be surprised if the owner of the lot is now aware of this issue and will take legal steps to protect himself.

Do the right thing. Get a survey. Move the camp (if necessary).

[winni83]

This is an oversimplification, but the Owner’s Title Insurance policy would normally provide coverage for a situation in which there are defects in the legal title to the insured property. For example, a forged deed, an error made by the person doing the title search which failed to pick up an undischarged lien or a prior sale out of a portion of the insured premises, a defect in a prior deed, etc. The policy essentially provides that the owner has legal title to the real estate described in the policy. The survey exception which I noted above is not usually deleted unless a current survey of the property is produced, showing the boundary lines and the location of improvements on the property in relation those boundary lines. If in fact the owner has legal title to the insured property, but for whatever reason, a portion of a building is located on property not owned by the insured owner, then there is no claim under the title insurance policy. The actual survey exception, at least in New Hampshire as of 5 years ago, is:

“Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the title, including discrepancies, conflicts in boundary lines, shortages in area, or any other facts that would be disclosed by an accurate and complete land survey of the Land, and that are not shown in the public records.”