Jury Trial Only, Unless Parties Agree to Judge Trial
Question: We have lived in our Casa Grande home for 13 years. Last year our neighbor said that our driveway is on his property, and that he intended to remove our driveway and build a barn there. We then filed a quiet title lawsuit that we owned the driveway. A jury trial has now been scheduled. Our neighbor wants a jury trial. We don’t think a jury trial will be helpful to us, and will be much more expensive. We want a trial to a judge without a jury. How do we get a trial to the judge only?
Answer: The general rule in civil litigation is that, if either the plaintiff or the defendant wants a jury trial, there will be a jury trial. If your neighbor wants a jury trial, the jury will decide who owns the land where your driveway is located. Legal fees for a jury trial are generally at least three times the cost of a trial to a judge.
Related Article: Lenders Position in Adverse Possession Claim
Question: We moved into our Glendale home 16 years ago. The developer for our subdivision mistakenly constructed the block wall four feet over the property line into our neighbor’s backyard. Two years ago when we refinanced the mortgage loan for our home we learned of the mistake. Inasmuch as this block wall had been constructed more than ten years ago, we had the right under adverse possession. Our neighbor agreed, and signed a quit claim deed to us for this four feet of land. The problem now is that we are selling our home, and our title company is saying that there is a “cloud on title” because the neighbor’s mortgage lender did not sign a quit claim deed to us for this four feet of land. How do we clear up this “cloud on title” of our neighbor’s mortgage lender?
Answer: When your neighbor purchased his home, the legal description for his home included the four feet of land. Your neighbor’s mortgage lender secured the mortgage loan by the same legal description, including this four feet of land. Although your neighbor signed a quit claim deed conveying this four feet of land to you, your neighbor’s mortgage lender was still secured by the entire legal description. Therefore, you will need to request a quit claim deed from your neighbor’s mortgage lender for this four feet of land. If your neighbor’s mortgage lender will not sign this quit claim deed, the four feet of land will still be subject to the lien of your neighbor’s mortgage lender. Under Arizona law an adverse claim against property does not affect the lien of the mortgage lender. 180 Ariz. 77.