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My wife and her previous husband own a property in our state…

Hi, my wife and her...
Hi, my wife and her previous husband own a property in our state of New Mexico. she and I have been paying the taxes and maintaining the property for about 20 years. no one lives on the property, and we have chased everyone off of there who have tried to inhabit the property. can we obtain clear title to the property under "adverse possession"?
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Answered in 9 minutes by:
3/13/2018
Michael Bradley
Category: Real Estate Law
Satisfied Customers: 1,377
Experience: Owner at The Protection Group LLC
Verified

is the husband alive?

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and the property was not dealt with at the time of divorce?

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Customer reply replied 1 month ago
no, it was a no fault divorce no property settlements
Customer reply replied 1 month ago
the tax bill still comes in her previous married name and his to our address

you would not be able to claim adverse possession since you are not residing on the property

however, you could file for a partition action

that is a court proceeding where the parties agree to dispose of the property

if an agreement can not be reached the court can order that the property be sold

one important aspect that you must point out to the court is that you have been paying for the property and everything

concerning it for 20 years as it is a factor

while not incredibly Complicated, I would strongly suggest that you retain an attorney who specializes in real estate law that would be able to file the petition for you and also advocate for you.

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Customer reply replied 1 month ago
even though we have chased several persons from the property?
Customer reply replied 1 month ago
physically block access to it?

Yes. What you have done was protected the property from anyone who could potentially squat on the land and then they could obtain the property via adverse possession. However, since you are already on the title adverse possession would not work for you. Adverse possession is a concept where you openly reside at the property, treating it as your own, four. In excess of 21 years. That point that person can file a motion in court to have the deed and title actually changed into their names. You already have your name on the property. The key here would be removing his name as he has not done anything to protect or preserve the property at all. For that reason he would go before a judge in a partition action in an attempt to have his name removed.

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Customer reply replied 1 month ago
what if I had filed for adverse possession for myself? Since my name is ***** ***** the title?

The problem with trying to file for adverse possession is that you are not currently residing on the property.

Adverse possession in Arizona is based on a statute of limitation. The statute requires a person seeking to recover land from someone else who has peaceable and adverse possession to commence an action within ten years after the cause of action accrues. That time may be shortened in certain circumstances—if the adverse possessor has been paying taxes on the land and has color of title, the action must be commenced within three years.

The adverse possession must be actual possession that is open and notorious, hostile, continuous, under a claim of right, and exclusive. The exclusive possession element requires the adverse possessor to be the only one possessing the land. Actual possession requires actually entering and controlling the property, not merely visit it occasionally.

Similarly, the open and notorious element requires that you visibly possess the land. You cannot sneak onto the land at night when nobody is around and then claim that you possess it. Arizona cases have described this element by stating that the adverse possessor must establish that he used the land as an ordinary owner of the same type of land would. Overson v. Cowley, 136 Ariz. 60, 664 P.2d 210, (App. 1982).

Overson also noted that there is no requirement that the adverse possessor’s use must be the only practicable use to which the land in question might be devoted. In that case, the adverse possessor used the land for cattle grazing, and was not prevented from claiming adverse possession solely because the land might be used for other purposes.

To be considered hostile, the possession the land must be without the owner’s permission. Generally, the adverse possessor must be presenting themself as the owner of the property to the public, but if there is express or implied permission from the land owner, then an adverse possession claim will fail.

Arizona does not require the adverse possessor to have a trespasser’s intent. A person who makes use of land mistakenly believing it to be his own still satisfies the hostility requirement of adverse possession. Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755, (1992)

Finally, the possession of the land must be continuous for the statutory period. Possession that fails to satisfy this requirement will forfeit the right to adverse possession, and may make possessor guilty of trespassing on the land.

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Customer reply replied 1 month ago
we are in new mexico

sorry about that

let me look up NM

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in New Mexico there are four elements necessary for a legitimate claim for adverse possession:

  • There must be a “hostile” claim: the trespasser must either
    • make an honest mistake (like relying on an incorrect deed);
    • merely occupy the land (with or without knowledge that it is private property); or
    • be aware of his or her trespassing;
  • There must be actual possession: the trespasser must be physically present on the land, treating it as his or her own;
  • There must be open and notorious possession: the act of trespassing cannot be secret; and
  • There must be exclusive and continuous possession: the trespasser cannot share possession with others, and must be in possession of the land for an uninterrupted period of time.

the time limit is 10 years

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the key here is actual possession, that would be hard to prove on your part

for that reason I believe the partition is the way to go

in my opinion

as you can see the state laws on adverse possession are very similiar

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Customer reply replied 1 month ago
ok I appreciate your help. we will have to decide how to proceed.

sorry I could not offer better news on adverse possession but talk to an attorney about partition

or track him down to see if he will sign a deed transfer

good luck

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Michael Bradley
Category: Real Estate Law
Satisfied Customers: 1,377
Experience: Owner at The Protection Group LLC
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