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Dan, Retired JD
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How do I apply for a Quit Claim for a piece of land that I ...

Resolved Question:

How do I apply for a Quit Claim for a piece of land that I have been using for the past 33 years with the owners knowledge?
Submitted: 6 years ago.
Category: Legal
Expert:  Dan replied 6 years ago.

The process you would use is to sue for "Adverse Possession". You must go to court and invoke the law on adverse possession in place in your state.

Each state has a slightly different version of the requirements, but the concept is fairly well described in the following:

"Adverse possession requires five elements in regards XXXXX XXXXX possession of the property:
1. Actual possession: its a function of the type of property, location, and uses. Paying taxes may or may not be required as proof. Can also be by “color of title” where the adverse possessor enters by way of a faulty deed (many states reduce the statute for someone claiming color of title). This sometimes results in “constructive possession” although legal owners in actual possession will negate the constructive possession of another.
2. Open and notorious: adverse possessor’s use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. Must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met, although can be also met by fencing, crops, buildings, or animals.
3. Exclusive: adverse possessor holds the land to the exclusion of the true owner.
4. Hostile or adverse: Objective view: used without true owner’s permission and inconsistent with true owner’s rights.Bad faith or intentional trespass view: the adverse possessor’s subjective intent and state of mind. Mistaken possession in some jurisdictions does not constitute a hostility. (An element that is often irrelevant).Good faith view: a few courts have required that the party actually mistakenly believe that its his/her land.
5. Continuous: adverse possessor must, for statute of limitations purposes, show that property was held continuously for the entire limitations period. Must use a true owner would for that time. When is the use significant enough to start the running of statute of limitations. This element is focused on adverse possessor’s time on the land, not how long true owner has been dispossessed of it.
In addition, some courts require (by common law or statute): Claim of title or claim of right; Good faith or bad faith; Improvement, cultivation, or enclosure; Payment of property taxes.
See http://en.wikipedia.org/wiki/Adverse_possession

The length of time that the property must be adversely held also varies state to state. I don't recall any, though, that would not be covered by a 30+ year period of use.

Of course, the existing property owner will have the right to object and defend. So you will be in a legal fight with your neighbor. Courts basically frown on 'adverse possession' because they see it as giving one person's property to another with no compensation to the original owner. To the courts that has a taint if being inequitable. For that reason they scrutinize adverse possession cases carefully and only grant the relief where the facts line up so cleanly that they have to under the terms of the statute. But if there is anything to favor the existing owner, any fact that isn't quite right under the statutory test, the courts will often decline to give the ruling you seek. For instance, if your state requires that you have been paying taxes on the land all this time, they won't grant the ruling you seek. Also, if they interpret the fact that the owner knew you were using the land as having implicitly given you permission to use the land, then they won't grant the ruling you seek.

This is a complicated court matter, and so it would be most wise to consult with a local attorney before proceeding.

I hope this has been helpful. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I'd greatly appreciate it!)

Thank you,

Dan

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise, and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Dan, Retired JD
Category: Legal
Satisfied Customers: 1164
Experience: Retired attorney, general practice, with an additional background in financial planning,
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