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Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 14619
Experience:  13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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we have a commercial lot in lake havasu az. and the over hang

Resolved Question:

we have a commercial lot in lake havasu az. and the over hang on the back side and has been over the property line for more than 8 years ( the property line is at the bottom of a 6' slope). weare selling the property and the owner of the lot we are encroaching on wants us to buy 2.5' wide and the length of the property what are our rights since this has been there for over 8 years.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Legalease replied 1 year ago.

Hello there.

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How did the eaves end up there 8 years ago? Did the builder simply just build it without bothering to determine the property line? Do you have any ideas on this?

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Has a title company or any lawyer indicated that this encroachment will be a problem in the upcoming sale?

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MARY

Customer: replied 1 year ago.

we built a non permenant structure on thr property line and the eaves hang over and the people who own the other piece of property found out it was selling and called us to say that they want $10,000.00 for the property. the person who is buying the property wants the structure as is. when we built this we were not concerned because of the slope the area we are talking about is useless land

Customer: replied 1 year ago.

we built a non permanant structure on the property line and the eaves hang over about 2' the people who own the land want us to pay them 10,000.00 for 2.5' wide section of their property. this property is at the bottom of a 6' slope which is use less land the person buying the property wants the structuer as it sits.

Expert:  Legalease replied 1 year ago.

Hello again Jackie --

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In Arizona in order to have a claim for adverse possession for property that you are encroaching upon you must occupy the property in an open manner, without permission of the other property owner for the statutory period in Arizona -- which pursuant to Arizona Rev Statutes Section 12-522 consists of two separate time periods. The first is a three year period if you have what is called "color of right" to the property -- which means that you have something in your own property documents that indicates that there is a possibility that you actually DO own the land OR you have been paying property taxes on that piece of land for a period of 3 years or more as part of your own property. The second statutory period is a ten year period where if you have no color of right -- meaning that you simply started using the land without an easement or the knowledge or permission of the owner then you must use it for ten years straight before you could take the matter to court and claim that the ownership of the land is yours and if you meet the statutory time period of continuous use without permission of the owner then the court would annex the property to your own. Unfortunately, you are telling me that these eaves have existed for a period of only 8 years and because the owner is now coming forward and seeking compensation it shows that the use of the land was not with their permission. So, you cannot qualify to meet the AZ statutory period for obtaining this strip of property through the doctrine of Adverse Possession unless you talk to the taxing authority and it is determined that you have been paying taxes on the land since the eaves were installed or around that time period (because you only need a three year period for a "color of right" adverse possession claim). If you meet none of the legal definitions of adverse possession, then I am afraid that you will have to either remove the eaves or come to some terms with the neighbor to be able to sell that strip of property to you before the sale of the commercial property. If you decide on the sale, you should make sure that the area is properly surveyed and a legal definition of the strip is broken off from the neighbors land so that it can be annexed to the current deed to the commercial property and recorded with the new deed into the new owners.

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I wish I could have delivered better news than this but at some point this may become a problem with the buyers lender or title company because an encroachment of this nature can cause a cloud on the title if it is not taken care of.

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I hope that helps. Please press the 3rd, 4th or 5th smile face under this ANSWER box so I will be paid for my time. I am paid NOTHING unless you press a positive rating below (we do not receive a paycheck) and while I am genuinely sorry that the news was not quite what you wanted to hear, I did give you the legal truth of the matter and did what I am supposed to do. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money -- it just acts as a trigger to Just Answer to pay me for my time.

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THANK YOU

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MARY

Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 14619
Experience: 13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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