real estate

How to claim part of neighbor's property

Steve McLindenDear Real Estate Adviser,
For 35 years, we mowed, maintained and used a small strip of our neighbor's land adjacent to us, plus a part of his circular driveway, each with his permission. He recently died and we'd like to buy those 2 strips before someone else buys in. The new owner is renting out the place for now but said he wants to sell soon. We're willing to pay all costs. Do we have recourse if the current owner won't cooperate?
-- Sheryl B.

Young girl playing in driveway | Annie Otzen/Getty Images

Dear Sheryl,
Unfortunately, you have less recourse now than you would have had you acted on this immediately after the old owner's death.

That's because you may have been able to claim one, or possibly both, parcels of land through adverse possession, or so-called "squatter's rights." Such laws sometimes enable people like you to gain control of land you've been using and maintaining for a qualifying period of 5 to 30 consecutive years, depending on different state laws, during which time you would have had to demonstrate continuous and unopposed, or "open and notorious," physical possession of it.

But don't beat yourself up. One of the key occupancy tests used by many courts these days may have disqualified you anyway. A claimant must possess the land exclusively over the years and the real owner likely used that driveway and possibly that side yard, too. Plus, you had his permission to use it, which can be another disqualifier, as odd as that may sound. So it wouldn't have been a clear-cut case.

Moreover, a lot of people have been trying to use eminent domain lately to scam owners out of land, and judges and courts are taking an increasingly dim view of such claimants, even though situations like yours are the reason such laws came into being.

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How to make a deal with the new owner

You need to diplomatically approach the new owner, discuss your previous land-use arrangement and ask if he'd consider selling the 2 parcels for a premium purchase price. Point out this sale would give him a fast return on his recent investment, plus reduce his property taxes.

However, the loss of those 2 tracts, particularly part of a driveway, might add what's called a "misfit attribute" to the property and make its resale much more challenging, depending on the configuration of the adjoining properties.

If he consents, you'll have to pay for an appraiser of your mutual choosing, plus add a premium of say, 10% to 20%, to make it worth his while. You'd also have to pay for a certified surveyor to recalculate, redraw and re-mark the property lines and, of course, pay the fees for title transfer, deed modification and re-recording. And if the property owner has a mortgage, his lender/lien holder must agree to this plan, too, and that could be a tough sell. Plus, if you try to finance the purchase, your lender may charge you an unusually high interest rate since there's no home on that land to use as collateral.

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Another solution to consider

But before you do anything, call your city hall or county offices to determine if there are any local restrictions -- deed or otherwise -- prohibiting such a lot-line adjustment.

This could all be very time-consuming, bureaucratic and expensive. And sadly, unless you were paying taxes on the portions of the property that you used and maintained, you likely have no legal or other recourse if the new owner won't go along with your plan.

Here's one off-the-wall solution: Since you're so good at maintenance, have you thought of buying the property as an investment, then renting it out to a thoroughly screened tenant of your own? Then you could, if permissible, have the property's lot lines redrawn before selling it to an owner-user.

Good luck!

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