Maintenance Opens Claim

  Question: We have lived in our Paradise Valley home for more than 15 years.  There are large oleanders on the boundary line between our home and our neighbor’s.  We could not build a garage (only a carport), because the oleanders are 13 feet away, and Paradise Valley requires a 20-foot setback from the property line for a permanent structure.  For the past 15 years, we have watered the oleanders and paid for our landscaper to trim and maintain them.  Our neighbor has done nothing.  If we have an adverse possession claim to move the property line to the other side of the oleanders, we could build a garage.  Do we have a claim?

  Answer:  Probably.  The basic elements for an adverse possession claim are open, notorious, continuous and hostile possession of the property for at least 10 years.  In other words, “treating the property as your property” even if you are not the legal owner.  If your neighbor knew you were maintaining the oleanders and did nothing, you should have a claim for adverse possession of the 7 feet.  If your neighbor will not agree to deed this to you, you should probably contact a lawyer who would file a quiet title action to get a court order that you are the owner of this 7 feet.  After you record the deed or the court order, Paradise Valley should acknowledge compliance with the 20 foot setback requirement.  However, if your neighbor gave you permission to trespass on the 7 feet of property to maintain the oleanders, you would not have a claim for adverse possession as your maintaining the oleanders was not “hostile.”