Ownership of Encroachment by Adverse Possession

Question: Four years ago we purchased Lot 7 in our Mesa subdivision that had been developed more than 30 years ago. In the last 30 years, there have been numerous owners of both Lot 7 and Lot 8. The Lot 8 owner recently had a survey done because he wants to build a gazebo in his backyard. This survey showed that the common wall between our two lots encroaches four feet onto Lot 8. The Lot 8 owner emailed us that he will pay for the cost to move the common wall back to the original property line between Lot 7 and Lot 8, but he wants us to sign a Quit Claim deed to the four-foot encroachment. Otherwise, he will contact an attorney to sue us for his ownership to the four feet, and for the cost to move the common wall four feet back to the original property line. All of our rose bushes next to the common wall will then be destroyed. Do we have any rights?

Answer: If the common wall encroached four feet over the property line into Lot 8 for more than 10 consecutive years during the last 30 years, you probably now have the right under the principle of “tacking” to acquire by adverse possession that four feet of property. You will have to contact prior owners of your home to get the necessary “tacking” for any period of 10 consecutive years. For example, if your seller owned your home for eight years, with your four years of owning your home, the “tacking” of your seller’s eight years would be a consecutive 12 years of adverse possession which would meet the 10-year requirement.

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