My new neighbor had his lot surveyed. And now is claiming ownership of
3 feet of land located inside my fenced yard. I can document that my
fence has been in place for many years. The neighbor's lot has always
been vacant and no one has ever made a claim before. Do I own the 3
feet or does he?

Hello.

First of all, I must note that Google Answers provides general
information and is not a substitute for professional legal advice. If
you need professional legal advice, you should contact an attorney in
your area.

--------------

In a nutshell, if you can prove that your fence has been in that spot
for more than 10 years, the disputed property belongs to you.
 
Here's a comparable question that recently appeared in the Arizona
Republic newspaper:
Arizona Republic: "Adverse possession should acquire title to 14-year-old wall"
http://www.azcentral.com/home/hb101/articles/0927combs27.html

That question involved a wall rather than a fence, but the principles
are the same.  It doesn't matter that you haven't paid any property
tax on the 3 feet.  It also doesn't matter whether you or your
previous neighbor knew about the encroachment.

"Under Arizona law, there is no requirement to pay property taxes on
the property being acquired by adverse possession. Furthermore, there
also is no requirement that either you or the other property owner
know of the adverse-possession claim. Even though you and the other
property owner believed that the concrete-block wall was the property
line, there should be adverse possession by you of the three-foot
encroachment."
  The period for adverse possession is generally 10 years."
source:
Arizona Republic: "Adverse possession should acquire title to 14-year-old wall"
http://www.azcentral.com/home/hb101/articles/0927combs27.html


Arizona's adverse possession law is codified in Title 12, Sections 521-529.
In you situation, Section 526 is key:
"A person who has a cause of action for recovery of any lands,
tenements or hereditaments from a person having peaceable and adverse
possession thereof, cultivating, using and enjoying such property,
shall commence an action therefor within ten years after the cause of
action accrues, and not afterward."
source: §12-526, Arizona State Legislature:
http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/00526.htm&Title=12&DocType=ARS

Basically, if your fence was there longer than 10 years, and assuming
that the previous owner was not under age 18 or of unsound mind, you
win.  The previous owner had 10 years to recover his land after you
fenced it off. If he failed to do so, it's yours.

As indicated in the Arizona Republic article cited above, if you wish
to formalize your ownership of the disputed property, you'll need to
get your neighbor to sign a quitclaim deed with respect to the 3 feet.
If the neighbor refuses to sign, you'd need to bring a "quiet title"
in court so that you would be formally recognized as the owner of the
3 feet.


--------

search strategy:
"arizona law", "adverse possession"
arizona "adverse possession" 12-521


I hope this helps. If anything is unclear, please let me know via the
"request clarification" feature. Good luck!

---

Clarification of Answer by juggler-ga on 23 Nov 2003 15:25 PST

Sorry for that typo above:
"In your situation, Section 526..."

A good job of boiling down the Arizona law.

I would urge you to obtain the help of a real estate attorney in
litigating any boundary line claim, as these actions can be
complicated. Try to find one with experience in these matters, as I've
seen some inexperienced attorneys mess them up. Also, you should check
your title insurance policy from when you purchased your property, as
you may be able to make a claim through that policy.

If you read the "adverse possession" law, you will find that the law
uses words which probably have a very different meaning in the context
of the statute than in lay parlance. For example, adverse possession
statutes usually speak of your possession as being "hostile". That
doesn't mean you're fighting with your neighbor, but instead means
that you are making a claim to the land that is hostile to your
neighbor's interest.

lucyfur:
Thank you for the tip.
-jugggler

Although a quiet title action sounding in adverse possession is a way
to go, another avenue would be to bring an action for "acquiescence"
since the fence "has been in place for many years."

Where a boundary line has been defined, in this case by the fence, for
a certain period of time, the parties may be found to have
"acquiesced" to the boundary.

The benefit in some states in this method of attack is that the
standard of proof may be lower. For example, in Michigan an adverse
possession claim must be proven my clear and convincing evidence,
whereas an acquiescence claim need only be proven by a preponderance
of the evidence.

Expertlaw is very correct. Property disputes involve extremely
technical arguments and litigation is almost a certainty. Find an
attorney that specializes in real property disputes.

weisstho-ga