Letter to Stop Adverse Possession  

  Question: When we purchased our lot in Fountain Hills six years ago, we knew that the rear portion of our lot was subject to a 10-foot city sewer easement. Therefore, when we built a block wall on the rear portion of our lot, we decided not to enclose this 10-foot city sewer easement within our block wall. Our neighbor, who has no fence or block wall, always appeared to have a bigger backyard than ours. Our neighbor recently sold his home, and the new owners act as if the land up to our block wall belongs to them. For example, the new owners have planted trees and shrubs in this 10-foot area. Can the new owners acquire this 10-foot area by adverse possession? If so, how can we prevent adverse possession?

   Answer: At the present time you own this 10-foot area subject only to a city sewer easement. Although this city sewer easement should not be affected by adverse possession because adverse possession does not apply against a governmental entity such as the city of Fountain Hills, you could lose by adverse possession your ownership interest in this 10-foot area.

   In other words, if the new owners exercise control over this 10-foot area for more than the statutory 10 years without your permission, the new owners would acquire ownership of this 10-foot area subject only to the city sewer easement. To prevent adverse possession of this 10-foot area, you should grant permission (which makes the possession no longer “adverse”) by writing a letter or even an e-mail to the new owners to use this 10-foot area. Alternatively, after reasonable notice to the new owners, you can remove the existing trees and shrubs.

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