Real Estate Q&A: Homeowner does not have to remove encroaching wall

screen-shot-2016-12-06-at-12-41-24-pmBy Adam D. Martinez, Esq.

Question:  We own a home at the base of Mummy Mountain in Paradise Valley, Arizona. We purchased it from my parents 3 years ago. Prior to us, my parents owned the home for 9 years. Recently, my new neighbor told me that a short stone wall dividing our properties and a water line and spigot on my side of the wall are actually located on his property. He demanded that we remove and relocate them immediately or he would have someone do it and send us the bill. He showed me a map he received from a surveyor which confirms that our wall and spigot encroach onto a 3-foot by 30-foot strip of land on his property.

What are our rights in this situation? Do we have to remove the wall and spigot?

Answer:  Your neighbor probably has no right to demand the removal of the wall or spigot. In Arizona, a party that uses another’s land without permission for a continued period of at least ten years can either acquire title to or an easement in the land that has been used. In determining whether the ten-year requirement, a prior owner’s use may also be considered.

Here, if the wall was mistakenly built on the neighbor’s property by 3 feet, and the neighbor’s predecessors did not give permission to your parents, then you now either own that strip of land (sometimes referred to as ownership by “adverse possession”) or you at least can continue using it for the water line and wall (sometimes referred to as having a “prescriptive easement.”). In either case, you should not have to move anything and you can prevent your neighbor from doing so.

Note: Adverse possession or a prescriptive easement is a right that arises out of law. It does not alone change the title records or plat maps. In order to correct the title records, you will need to either obtain a deed from the neighbor, or if he refuses, obtain a court order directing the correction to be made by deed. Resolving title disputes is important, not only because it protects your rights, but title disputes must also be disclosed when selling a home and could prevent or delay a sale.

Adam Martinez is the Chairman of the Real Estate Litigation Department at Rose Law Group pc. and can be reached at amartinez@roselawgroup.com.

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