Is It Expensive to Do an Adverse Posssession Deed?
Full Question:
Answer:
Typically, adverse posssession is established by bringing a court action. The expense will depend on how contested the case is, and whether the other party has the finances to put up a lengthy defense. It may be inexpensive if you represent yourself. You may review the prices of the forms linked to below and call your local clerk of courts to inquire about filing fees. Otherwise, we suggest you get a few estimates from local attorneys, many offer a free initial consultation.
Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement; see your state codes or the code of the state in which you are interested for more detailed information.
The following are North Carolina statutes:
§ 1-35. Title against State.
The State will not sue any person for, or in respect of, any real
property, or the issue or profits thereof, by reason of the right or
title of the State to the same —
(1) When the person in possession thereof, or those under whom he
claims, has been in the adverse possession thereof for thirty years, this
possession having been ascertained and identified under known and visible
lines or boundaries; which shall give a title in fee to the possessor.
(2) When the person in possession thereof, or those under whom he
claims, has been in possession under color of title for twenty-one
years, this possession having been ascertained and identified under known
and visible lines or boundaries.
§ 1-38. Seven years' possession under color of title.
(a) When a person or those under whom he claims is and has been in
possession of any real property, under known and visible lines and
boundaries and under color of title, for seven years, no entry shall be
made or action sustained against such possessor by a person having any
right or title to the same, except during the seven years next after his
right or title has descended or accrued, who in default of suing within
that time shall be excluded from any claim thereafter made; and such
possession, so held, is a perpetual bar against all persons not under
disability: Provided, that commissioner's deeds in judicial sales and
trustee's deeds under foreclosure shall also constitute color of title.
(b) If
(1) The marking of boundaries on the property by distinctive markings
on trees or by the implacement of visible metal or concrete boundary
markers in the boundary lines surrounding the property, such markings to
be visible to a height of 18 inches above the ground, and
(2) The recording of a map prepared from an actual survey by a surveyor
registered under the laws of North Carolina, in the book of maps in the
office of the register of deeds in the county where the real property is
located, with a certificate attached to said map by which the surveyor
certifies that the boundaries as shown by the map are those described in
the deed or other title instrument or proceeding from which the survey
was made, the surveyor's certificate reciting the book and page or file
number of the deed, other title instrument or proceeding from which the
survey was made,
then the listing and paying of taxes on the real property marked and for
which a survey and map have been certified and recorded as provided in
subdivisions (1) and (2) above shall constitute prima facie evidence of
possession of real property under known and visible lines and boundaries.
Maps recorded prior to October 1, 1973 may be qualified under this
statute by the recording of certificates prepared in accordance with
subdivision (b)(2) above. Such certificates must contain the book and
page number where the map is filed, in addition to the information
required by subdivision (b)(2) above, and shall be recorded and indexed
in the deed books. When a certificate is filed to qualify such a recorded
map, the register of deeds shall make a marginal notation on the map in
the following form: "Certificate filed pursuant to G.S. 1-38 (b), book
________ (enter book where filed), page ________".
(c) Maps recorded prior to October 1, 1973 shall qualify as if they had
been certified as herein provided if said maps can be proven to conform
to the boundary lines on the ground and to conform to instruments of
record conveying the land which is the subject matter of the map, to the
person whose name is indicated on said recorded map as the owner thereof.
Maps recorded after October 1, 1973 shall comply with the provisions for
a certificate as hereinbefore set forth.
§ 1-40. Twenty years adverse possession.
No action for the recovery or possession of real property, or the
issues and profits thereof, shall be maintained when the person in
possession thereof, or defendant in the action, or those under whom he
claims, has possessed the property under known and visible lines and
boundaries adversely to all other persons for 20 years; and such
possession so held gives a title in fee to the possessor, in such
property, against all persons not under disability.
§ 1-41. Action after entry.
No entry upon real estate shall be deemed sufficient or valid, as a
claim, unless an action is commenced thereupon within one year after the
making of the entry, and within the time prescribed in this Chapter.
§ 1-45. No title by possession of public ways.
No person or corporation shall ever acquire any exclusive right to any
part of a public road, street, lane, alley, square or public way of any
kind by reason of any occupancy thereof or by encroaching upon or
obstructing the same in any way, and in all actions, whether civil or
criminal, against any person or corporation on account of an encroachment
upon or obstruction or occupancy of any public way it shall not be
competent for a court to hold that such action is barred by any statute
of limitations.
§ 1-45.1. No adverse possession of property subject to public trust
rights.
Title to real property held by the State and subject to public trust
rights may not be acquired by adverse possession. As used in this
section, "public trust rights" means those rights held in trust by the
State for the use and benefit of the people of the State in common. They
are established by common law as interpreted by the courts of this
State. They include, but are not limited to, the right to navigate,
swim, hunt, fish, and enjoy all recreational activities in the
watercourses of the State and the right to freely use and enjoy the
State's ocean and estuarine beaches and public access to the beaches.
§ 43-21. No right by adverse possession.
No title to nor right or interest in registered land in derogation of
that of the registered owner shall be acquired by prescription or adverse
possession.