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  #1  
Old 03-01-2006, 06:43 PM
Ray Miller's Avatar
Ray Miller Ray Miller is offline
 
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State: Wisconsin
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Wink Adverse Possession/Help please

Doing two vacant lots for a township so they can figure a price to place them on the market for sale.


One of the lots of course is Wisconsin River frontage no big deal.

After taking the job, then talking with the townchair I find out the following.

Also the home owners on each side filled me as I was looking at the lot.

The second lot is starting to pose a problem. I have land owners on each side who are in the process of claiming adverse possession. They have mowed and taken care of the subject lot for over 10 years. The township has done nothing with it. One of the owners has part of his paved driveway across the property also for over ten years. They don't want the town to sell the lots. They were given to the township for parks. But the township needs money.

How would you approach this as an appraisal problem as the value? Would you do a Hypo as if there is no fight in on the horizon?
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  #2  
Old 03-01-2006, 07:01 PM
Marcia Langley's Avatar
Marcia Langley Marcia Langley is offline
 
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Ray,

I think as you are explaining the encroachment and its effect on value, you should at least mention the information regarding the neighbors professed intentions.

Since your client is the owner, it is information they should have. I think your hypo should include the assumption that the issues can be resolved.
  #3  
Old 03-01-2006, 07:20 PM
Jerry Lieb Jerry Lieb is offline
 
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Ray,

Just did an appraisal of some commercial vacant land a couple of months ago involving a neighboring house whose circular driveway encroached significantly on my client's land - and has done so for over 10 years. There is about 50' of encroachment...!

The home owner approached me while I was measuring and photographing and told me that it has always been unclear where the property boundaries were.

Here in California, there are various laws regarding adverse possession. I am not an attorney, but it is my understanding that the encroacher must not only encroach openly and "notoriously", but must also make the tax payments in order to acquire the land by adverse possession. This neighbor did not make the tax payments on my client's land. However, an attorney told me that if it went to court, the judge would most likely grant a "prescriptive easement" which would mean that the encroacher would have a more or less permanent easement to use the land he occupies for his driveway.

I advised my client of my findings and was asked to value the property as though the encroachment did not exist. That is what I did. I sufficiently described the situation, and made this a hypothetical valuation. There was enough verbage in my report to protect me, you can be sure. That was the only way I felt comfortable handling that assignment.

Last I heard, my client was going to try to purchase the encroacher's home.
  #4  
Old 03-01-2006, 07:34 PM
Ray Miller's Avatar
Ray Miller Ray Miller is offline
 
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In Wisconsin you just need to use the land openly. If the owner dose not approach you and tell you move on. In seven years you can claim adverse possession. I belive that is what I learn in my Real Estate Sales and Broker Classes as well as in all the courses for Appraisal.

There was a case here in Wisconsin a few year ago where a man took care of 80 acres of trees along the Wisconsin River. The land belong to one of the paper outfits. It was a tree farm. They failed for some reason to care for this 80 acres. The man after seven years went to court and won. He has a small acreage next to it he lived on mowed the 80 trimed the weeds and used it to fish from. No one ever run him off, so I understand the judge said it yours, trees and all.

The township knows that these people are planning on going to court.
  #5  
Old 03-01-2006, 07:35 PM
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David Wimpelberg David Wimpelberg is offline
 
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Hi Ray,

Laws regarding adverse possession vary by state. It would be good to speak to an attorney or an expert appraiser on matters such as this. The land in this case is owned by a municipality. There may be laws that prohibit adverse possession against land owned by a municipality. I know for a fact that this is this case here in NY.

If you're interested

"Once the court determined that the State owned the land, it held that, as a matter of law, plaintiff’s claim of adverse possession was without merit under the rule that land held in a public or governmental capacity may not be lost by adverse possession"

http://www.dos.state.ny.us/cnsl/comments/yachtclub.htm
  #6  
Old 03-01-2006, 07:46 PM
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Hi Ray,

There is a little more to it than what you have posted. Here is a fairly common sense explanation from a county web-site:

Quote:
ADVERSE POSSESSION

In contrast to modern concerns such as pesticide drift, adverse possession is a very old concept. It was developed under English common law in feudal times. Feudal landowners that owned so much land that they were unable to keep track of it could lose remote parts to poor peasants living on the property. This concept of "squatter's rights" contained two essential elements: the squatters had used (possessed) the property as if it were theirs for a significant length of time, and the landowner had not given them permission (thus their use was defiant or adverse).

Adverse possession still occurs. Usually, it involves a landowner knowingly using adjoining property as if it were part of his or her own property. The adverse possessor need not, however, be a neighboring landowner.

Possession is defined as cultivation, improvement, enclosure (fencing), or use for fuel (firewood). The mere crossing of property by foot or by vehicle on a trail or along utility lines does not constitute possession.

There are three ways to claim adverse possession. If the claim is based on a recorded written document and the claimant has paid property taxes on the property, the claimant must have maintained possession for seven years. If the claim is based on an inaccurate written document but the claimant did not pay taxes, the time period for maintaining possession is 10 years. If no documents are involved and the adverse possessor has not paid property taxes on the property, then the time period for maintaining possession is 20 years (Sec. 893.25-893.32).

Take the following precautions to eliminate a potential adverse possession claim against your property:

· Thoroughly investigate the use of the property when you buy

· Check boundaries and ask neighbors if anyone is using the

· Periodically establish physical possession by keeping other property.

· Use the land yourself

· Rent the land and record the signed lease

· Give written permission to a potential adverse possessor.
Also, I believe what David referenced regarding NY is likely to be about the same here. I'm not that familiar with adverse posession issues, but that sounds like something I've read or heard before.

If you google/yahoo "adverse posession wi" you get a lot of information.
  #7  
Old 03-01-2006, 07:49 PM
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You could call the Realtor's legal hotline. I have done that once in the past for a different issue. They gave ok advice and can certainly help you with where to get more info.
  #8  
Old 03-02-2006, 07:35 AM
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Don Clark Don Clark is offline
 
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Cool Government owned land ?

Ray,

I believe that in most states you cannot claim land by adverse possession. That is true here in Virginia. I would check with the local ADA or whomever represents the city, county but I do not believe they can claim government land by adverse possession.
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  #9  
Old 03-02-2006, 08:30 AM
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Hi Ray,

I got a verbal confirmation from a good source, though it isn't a legal opinion.

As I understand it right now, government lands cannot be claimed by adverse posession. That has not always been the case, but it has been for some time.

Also, adverse posession typically doesn't mean that the claimant receives full fee title rights, but instead receives the right to continue to use the property in the same way as before. Basically, they receive a prescriptive easement.

Again, this is not from a lawyer, so you will definitely need to look farther. Hopefully, though, this helps some.
  #10  
Old 03-02-2006, 08:43 AM
xm72mhd xm72mhd is offline
 
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Quote:
Originally Posted by Ray Miller
The second lot is starting to pose a problem. I have land owners on each side who are in the process of claiming adverse possession. They have mowed and taken care of the subject lot for over 10 years. The township has done nothing with it. One of the owners has part of his paved driveway across the property also for over ten years. They don't want the town to sell the lots. They were given to the township for parks. But the township needs money.
Never did a darned legaql thing in Wisconsin and I don't think I've ever read a case from there, but I was taught adverse possession can't run against the soveriegn (taht's the government for us). So while the mowing is a good thing the neighbors will have to be satisfied with that for a reward. If this were a Colorado case the facts you quote would be a so-what legally. Check Wisconsin law though.
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