Adverse Possession

In Contracts, Dispute Resolutionby Kameron KramerLeave a Comment

When I purchased my home, my neighbor’s hot tub was situated on my property line.  I went ahead and closed on the purchase of my home (20 years ago) with the hot tub sitting on my property and forgot about it.  I am now concerned that when the time comes that I want to sell my house, or my neighbor sells his house, it could become an issue.  What can and should I do?

What are my options?

First and foremost, you need to speak with your neighbor directly about this issue.  Hopefully you can come to an agreement with your neighbor and have them move the hot tub without issue.  If that is not an option, we need to look at possible adverse possession. 

In order to claim ownership of land by adverse possession, the New Mexico statute requires the following conditions:

  • Good faith claim under color of title;
  • Open and continuous physical possession;
  • Ten years of exclusive possession; and
  • Paid taxes on the land during the time of possession.

Assuming you cannot come to an agreement with your neighbor, start by having a surveyor measure and map the property lines to confirm that the hot tub is in fact on your property.  If you confirm that the hot tub is on your property, we need to determine whether your neighbor could claim ownership of your property by adverse possession. 

Next, you should next check the property tax records to see if your neighbor had made any payments on the area where the hot tub is located.  If they have not paid any taxes on the property where the hot tub is located, then they fail to satisfy one of the elements of adverse possession. 

Some key questions we would need answered are:

  • Does your neighbor use the hot tub, and if so, how often?
  • Do you use the hot tub?
  • Was there ever an agreement between the two of you relating to the placement of the hot tub?
  • Does your neighbor have reason to believe the hot tub is on their property?
  • Would it hurt the value of your property if you did in fact deed the property where the hot tub is located to your neighbor?

Assuming not all of the elements for adverse possession have been satisfied by your neighbor, then your neighbor can be treated as a trespasser, as far as the hot tub.  You would probably be legally allowed to move the hot tub to your neighbor’s property, but this is a situation where communicating with your neighbor first would be recommended.  And if this is a situation where your relationship with your neighbor is hostile, filing a complaint with the court would not be a bad idea in order to request legal authority to have the hot tub removed.  But, if you did file a complaint with the court, your neighbor could file a countersuit for adverse possession, which would be costly and time-consuming.   

Adverse possession issues can be quite complex, and it’s important to speak with an attorney early on the process, and hopefully early enough where you could avoid an adverse possession claim if it’s your land in question that someone is possibly going to gain ownership of through adverse possession. 

Ready to speak with an Attorney?
Contact us or give us a call at 505.848.8581

Leave a Comment