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Arizona Real Estate Law
by Christopher A. Combs
The following is for informational purposes
only and is not intended as definitive legal or tax advice. You
should not act upon this information without seeking independent
legal counsel. If you desire legal, tax or other professional advice,
please contact your attorney, tax advisor or other professional
consultant.
Adverse possession after ten years by “tacking”
of prior owners
Question: When the seller purchased his home five years
ago there was a block fence between his yard and his neighbor’s
yard. A new neighbor bought the neighbor’s home two years ago. The
seller is now in escrow to sell his home, and a survey shows that
the block fence encroaches on the seller’s backyard by one foot.
Has the seller lost this one foot of property by adverse possession?
Answer: The elements for establishing a claim for adverse
possession are that the possession of the subject land must be:
(1) actual and visible, (2) for ten years, (3) commenced and continued
under a claim of right inconsistent with and hostile to the claim
of another, and (4) to the exclusion of all others, including the
titled property owner. Berryhill v. Moore, 180 Ariz. 77, 82, 881
P.2d 1182, 1187 (App. 1994). In order to calculate the ten years,
there can be “tacking” of the time periods of prior owners of the
land. Therefore, if the block fence has been there for more than
ten years, the new neighbor who has only owned his home for two
years probably has a claim for adverse possession.
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