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Thomas McJD
Thomas McJD, Lawyer
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Experience:  Real Estate Attorney
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For Oklahoma..... I purchased my bank-owned proprerty April

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For Oklahoma..... I purchased my bank-owned proprerty April 23, 2010, from the bank paying $85,000 cash, given a Statutory Corporation Warranty Deed; and, paid for Title Insurance and Closing Escrow. The bank had a Foreclosure/Money Judgment on file December 2008, and received a Quit Claim Deed for possession in October 2007...does this purchase "reset" the Oklahoma clock for adverse possession claims? Following, is the statute: §12‑93. Limitation of real actions. http://webserver1.lsb.state.ok.us/OK_Statutes/CompleteTitles/os12.rtf Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter: (1) An action for the recovery of real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of district court in administration or probate proceedings, when brought by or on behalf of the execution debtor or former owner, or his or their heirs, or any person claiming under him or them by title acquired after the date of the judgment or by any person claiming to be an heir or devisee of the decedent in whose estate such decree was rendered, or claiming under, as successor in interest, any such heir or devisee, within five years after the date of the recording of the deed made in pursuance of the sale or proceeding, or within five years after the date of the entry of the final judgment of partition in kind where no sale is had in the partition proceedings; or within five years after the recording of the decree of distribution rendered by the district court in an administration or probate proceeding; provided, however, that where any such action pertains to real estate distributed under decree of district court in administration or probate proceedings and would at the passage of this act be barred by the terms hereof, such action may be brought within one year after the passage of this act; this proviso shall not be construed to revive any action barred by paragraph 4 of this section. (2) An action for the recovery of real property sold by executors, administrators, or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward of his guardian, or any person claiming under any or either of them, by the title acquired after the date of judgment or order, within five years after the date of recording of the deed made in pursuance of the sale. (3) An action for the recovery of real property sold for taxes, within five years after the date of the recording of the tax deed, except where lands exempt from taxation by reason of any Act of the Congress of the United States of America have been sold for taxes, in which case there shall be no limitation; provided, nothing herein shall be construed as reviving any cause of action for recovery of real property heretofore barred nor as divesting any interest acquired by adverse possession prior to the effective date hereof. (4) An action for the recovery of real property not hereinbefore provided for, within fifteen years. (5) An action for the forcible entry and detention or forcible detention only of real property, within two years. (6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one year from and after its effective date.


 


 


I want to know if any of the above acts create a valid "Judicial Sale" that would reset the Adverse Possession statute to five (5) years?


 


 

Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Thomas McJD replied 1 year ago.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

No, for adverse possession, the number of years of adverse possession (and the 15 year period of time for which the property must be so held to claim a superior right to title) continues to run despite change in legal ownership pursuant to deed, foreclosure, etc. Thus, if the adverse possessor has continuously claimed title for the requisite 15 years and met all the requirements of adverse possession, then that person could sue to quiet title via adverse possession.

TMcJD :

In addition, multiple adverse possessors can tack their successive periods of adverse possession.

Customer:

I have the title...my neighbor who wants my "strip of land" due to an old fence...has not "legally" filed with a court to obtain Adverse Possession...I have contacted a attorney here in Oklahoma; but, want to get information from JustAnswer...due to the $250-$300 an hour rate. What stops my neighbor's assertion to Adverse Possession due to a fence?? He is "vested" only by his statement; doesn't he have to go to court and file? Also, the attorney I sought is to send the neighbor the Statute 150.1 and state I want to fence my land on my boundary line as per a recent survey I just got; so, in the meantime, can I walk on that strip of land and cut the numerous bull thistles that are on it? Isn't it my land, by law...since I am the record owner...until the neighbor claiming adverse possession, etc., legally files a claim?

Customer:

And, wouldn't the banks that mortgaged my property prior to my purchase be in a position of "fraud" if they did not disclose to me the encroachment due to the fence and they knew the neighbor was accumulating "vesting" time for an adverse claim? Wouldn't they have to write an affadavit stating that the adjacent landowner was open, hostile,notarious, exclusive in the use of that strip of land(which, by the way...is over 3 acres)?

TMcJD :

To get valid title, yes he would have to go to court to quiet title to the strip of land on the basis that he "adversely possessed" that portion of land for the required 15 year period. Until that occurs, you are the record owner and can demand his fence be moved to his property and taking any other actions consistent with your record ownership. No there is no claim for them failing to inform you that the neighbor might be encroaching as that was "legally" apparent by survey (which you had the opportunity to conduct and review). Keep in mind that adverse possession in these cases is very, very difficult to establish because one of the elements is claiming title adversely. You know that you're claiming someone else's property. If it was simply a case of mistaken boundaries, he didn't know he was claiming your property. These cases rarely proceed to court, even more rarely to trial, and very, very rarely are successful on the adverse possessor's part.

Customer:

We closed escrow with a promise of 33 acres and a forthcoming survey, abstract and appraisal from the bank. I did not get that abstract or appraisal until two years later, after closing. Also, I gave up "trying" to get that promised survey....and, just a few weeks ago...paid $1800 and got my own survey! I believe that there was fraud in conveying my property to me on the part of the Bank, Realtor and Title Company. (And, that is way too expensive and hard to prove, right?)

TMcJD :

Well, it sounds like you may have some breach of contract claims (or did). However, you may have waived any rights to assert such breaches by closing on the property despite your inability to obtain the abstract and complete a survey (as you were promised) prior to the closing. If any fraud occurred, you would only have had 1 year from the date you discovered the fraud to sue. In any event, it does come down to whether a lawsuit would be worth pursuing and it is quite expensive since no attorney would take this on a contingency basis. It would cost tens of thousands. Since the strip of land at the center of the dispute is probably not worth more than a few thousand dollars, it would not be worth being proactive. But that applies to the neighbor as well. He will almost certainly not pursue a quiet title action to obtain title to the land because it's not worth it. But you would still need to disrupt his adverse possession by removing his fence to the proper boundary. That is something to speak with your local attorney about because you want to do it in a legal manner that protects you from any claims by him for destruction of property.

Customer:

Also, the fence encroaches on my land 100 feet tapering to 17 feet for a distance of 1980 feet. That owner stated to me when I bought this property that he did not know who built the fence;; and,that we could just call it ours. I did not acknowledge that to him at all....and, stated that we were waiting for a survey from the bank. And, then, the rest is as I have told you.

TMcJD :

Sure, that only might change my statement as to the value of the property encroached and whether it would be worth in to either of you to pursue expensive legal remedies.

TMcJD :

I wish there was an easy way for you to deal with this, but there really is not short of what you're already doing - retaining a local attorney. And unfortunately that is expensive. Title insurance generally does not cover this sort of dispute because it was not apparent from the property records.

Customer:

I discovered the fraud in 2012, right before the Delaware County Upcoming Tax Deed Sale...we were procuring a property adjacent to the other side and sought documents on it. That prompted us to walk our property and measure....and showed us it was way off. And, then the county provided us with aerial photos that showed a mow pattern, etc.. We contacted the title company immediately upon "discovery" and the bank and the Realtor...bank still promising the survey...and the title company stating adamantly:We don't cover fences or property disputes in Okllahoma; nor encroachments!" And,the realtor stated oh, yea....that's the law here in Oklahoma...that happened to us, too. And, quickly stated some comment that he was just a Transition Broker and gave me a Purchase Contract....of which I had never seen nor was at closing, etc. Yet...title company had the same contract in their record....I cannot explain how I have been violated...I was not alone, I had my companion Patrick with me at closing and when I gave the realtor my earnest deposit.

TMcJD :

I'll opt out and allow another expert to assist you. You have not been charged and will not be asked to rate an answer until you are further assisted. Thanks.

Customer:

The statute of limitations in real estate conveyances, Warranty deeds, or DISCOVERY FOR OKLAHOMA is only one year? I can prove "Discovery of this fraud"; but, I was told it was two years from date? Please verify if you can/.

TMcJD :

My apologies for the confusion. Yes, in Oklahoma the limitations period for a fraud claim is 2 years from discovery.

TMcJD :

In addition, after reviewing Oklahoma law on adverse possession, it appears the courts here had eliminated the "intent" or "knowledge" aspect of a claim -- i.e., the adverse possessor doesn't have to know he is actually trespassing and adversely possession someone else's property with an "evil" motive. He simply has to make claim to that land openly and as his so that it is adverse to all others for a period of 15 years.

TMcJD :

Sorry I had to step out earlier. I had to step away. Sorry no one else stepped in to assist you.

Customer:

I definitely rate you as very good service; but, I have a premium membership I pay monthly and I am told that my answers are "free"; or, rather included in that monthly price under an unlimited condition. So...I cannot remit anything more at this time. If I rate you good or excellent; will another $25 be deducted or is your answer included in my membership?

TMcJD :

If you're part of the membership, then as far as I've been informed, you will not receive an additional charge. Thanks!

TMcJD :

If you do receive a charge you believe is unauthorized, then please let customer service know. Thanks again.

Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6510
Experience: Real Estate Attorney
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