ADVERSE POSSESSION SITUATION

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ADVERSE POSSESSION SITUATION

Mike Flora
Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes

Got a situation, deed shows owners names that have been dead for 14 years and neighbors state property vacant for at least that long. Property is free and clear but obviously taxes have been paid. So I have found no heirs to deceased of 14 years and nothing has been done to property to fix it up. Taxes were late and not paid for December 2014 so I paid for December and April to bring taxes current and changed tax address to my address and found out who has been paying taxes and doing nothing with the property. They actually called me cause I put a for sale sign in the yard to get a response and it worked. They were upset etc etc trying to say I was trespassing etc, the neighbors want me to fix the property up and no one has taken the steps to move the deed into there name and obviously do not have the money or resources to do so, but I do and took those first steps with the taxes. So pretty much it's a battle between me and the other tax paying people right now on the property. I want to go change the locks and start a process to remove the people who have been doing nothing with this property and have been paying taxes for I have no idea how long for dead deed holders. I'm going to contact a lawyer for info but THOUGHTS on the situation? Obvious there is more to the story but that is the basic jist of things.

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Account Closed
Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
11y
Originally posted by @Mike Flora:

taxes were $400 dollars between 3 people to bring current and these people are trying to do the same thing we are yet doing nothing with the property. Property vacant and nothing done with it for 15 years. People just changed tax address very recently and have no ties with the deceased deed names. It's up for the taking so my problem is not knowing how long these other people have been paying the taxes. The cloud is unknown at this time so the most I lose is like 125 dollars but can gain about 120K. 

So how do you know for a fact that the people paying the taxes are trying to adversely possess the property?  Did they tell you that?  How do you know they don't have ties with the decedent and/or their estate?

The property is up for the taking? Where did you get that? That would be like saying every vacant CA property that is tax defaulted and in need of repairs is for the taking.  AP is way more complicated than that.  

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  • Davido Davido
    Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
    10y

    @Jay Hinrichs  Jay, the clear majority of abandoned tax delinquent properties in my area had multiple liens on them. Mortgages, 2nds, 3rds, DSHS, L & I, City Water, Sewer, LID's, etc,   Frankly, I have yet to find an apparently abandoned or vacant, tax delinquent target for Adverse Possession with a clear title.  It has always been a matter of negotiating for an assignment of either the non performing note(s) or of an unpaid lien.  Usually it is a matter of the lien holder accepting my offer or getting nothing.  There is usually not a lot of time before the parcel is subject to sale at the property tax foreclosure auction.  I found my targets by reviewing the county delinquent tax parcel list.  I've never had a competing bidder for a lien.  Often enough other people are interested in the 1st though.  My strategy in the future will be to identify the properties and acquire assignment of non peforming notes and/liens before the county files its Certificate of Delinquency to start foreclosure against them.

    I have given some thought to how a lien could be placed on a property but it is speculative because I have not yet done so. Basically, I would look for any debt holder (Including govt. agencies), any jurisdiction authorized to compel an action (HOA, City, County), and would attempt to educate/convince them as to the value of placing a lien that I would promise to instantly purchase.

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Davido Davido  got it I concur on most tax sale properties having some hair on them.. not sure if municipalities would sell their lien... that's interesting.  other private company debt I fully understand those would be wide open to negotiation and purchase.

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  • Account Closed
    Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    10y

    Still don't see the benefit of using liens as part of an AP strategy.  The open and notorious use has to be by someone adverse to the owner.  Once you have a lien, you may have an interest that could blow the adverse use claim.  This is why heirs can't easily use AP to gain title.  They pay taxes for years and occupy the property but their claim isn't technically adverse. A judge where I am will want to know why somebody with a lien didn't foreclose. And will have concerns that a lien holder occupying property isn't truly adverse.

    I feel like this thread has started focusing on the many claims for quieting title issues as opposed to a true AP claim. 

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Account Closed  good point ... buy the lien take it to sherrifs sale take title that way.

    I need to check in on my brothers AP claim.. his is poster child for it.

    its a small acreage piece next to his small acreage.. he fenced it off has been using it for about a decade now and has been paying tax's.. etc .. either way for him he gets the benefit of use all these years for a small payment each year.

    I do believe these laws maybe out west were written more for these rural sitautions as well.

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  • Kyle Costello
    Oswego, NY · Member since 2016 · 6 posts · 0 votes
    10y

    sounds like the property belongs to the city to me  and that it should go up for public auction.

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  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y
    Originally posted by @Account Closed:

    Still don't see the benefit of using liens as part of an AP strategy.  The open and notorious use has to be by someone adverse to the owner.  Once you have a lien, you may have an interest that could blow the adverse use claim.  This is why heirs can't easily use AP to gain title.  They pay taxes for years and occupy the property but their claim isn't technically adverse. A judge where I am will want to know why somebody with a lien didn't foreclose. And will have concerns that a lien holder occupying property isn't truly adverse.

    I feel like this thread has started focusing on the many claims for quieting title issues as opposed to a true AP claim. 

     I'm still learning but your stating that heirs occupy the property and try AP of the property. Why not just put it through probate and get the property that way? Are you talking about heirs farther down the line trying to aquire the property out of turn? I'm actually going to hire a PI to find an heir of the property in this post. The money spent to do so is worth the risk with this situation and what I know about the property itself. I HAVE TO GIVE IT A GO! Neighbor I was working with got his case dismissed with prejudice on the quiet title. I was very stupid 10 months ago on how I approached this, but live and learn and as Jim Rohn said...."Don't wish it were easier, wish you were better!"

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  • Rick H.
    Lender · Greater LA/Orange County area, CA · Member since 2012 · 3k+ posts · 3k+ votes
    10y

    Again, lots of opinions but I only know @Account Closed and myself to have obtained Orders Quieting Title via claim of right AP. 

    Speculative theory is further complicated when those who have posted miss the subtle differences in state case law. 

    AP is a messy, risky and specialized tool spoken of briefly in law school and perhaps a sentence or paragraph in real estate law for broker exam. 

    Here's a gauge of how rare it really is: in three cases, one judge was Not engaged, one was  very interested, and this last judge was exceptionally interested.

    On the down side, I had a case go sideways that all made me the bad guy for saving someone's house from tax sale, foreclosure, code enforcement and a record owner who left her pets to die while unattended inside the house that she abandoned. Shameful. Or at least crazy and irresponsible. 

    As to the legal technical side, an adverse possessor has many hurdles to price in order to satisfy a judge, not to mention the difficulty noticing all deceased owners' heirs prior to obtaining order allowing legal pub. 

    As to acquiring a lienhold interest, that might be preferable as a debt play in lieu of an equity play which requires clearing title. Don't think muni's are selling their debt to the public just yet.

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  • David Krulac
    Mechanicsburg, PA · Member since 2013 · 3k+ posts · 2k+ votes
    10y

    @Rick H. everything he and K. Marie said is spot on.  AP is the most difficult way to acquire property.  Besides all the other requirement, here in PA the wait period is 21 years.  And vacant land need to be fenced off and everybody including the owner has to be excluded from the property.

    Sometimes here an implied AP is used as an alternative to a Quiet Title, but already having a color of title to go along with it.

    There was an interesting case here where a business occupied a property and claimed AP, having the 21 years.  Later it was eminent domained by a government agency.  AP to ED, pretty cool!

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  • Account Closed
    Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    10y
    Originally posted by @Mike Flora:
    Originally posted by @Account Closed:

    Still don't see the benefit of using liens as part of an AP strategy.  The open and notorious use has to be by someone adverse to the owner.  Once you have a lien, you may have an interest that could blow the adverse use claim.  This is why heirs can't easily use AP to gain title.  They pay taxes for years and occupy the property but their claim isn't technically adverse. A judge where I am will want to know why somebody with a lien didn't foreclose. And will have concerns that a lien holder occupying property isn't truly adverse.

    I feel like this thread has started focusing on the many claims for quieting title issues as opposed to a true AP claim. 

     I'm still learning but your stating that heirs occupy the property and try AP of the property. Why not just put it through probate and get the property that way? Are you talking about heirs farther down the line trying to aquire the property out of turn? I'm actually going to hire a PI to find an heir of the property in this post. The money spent to do so is worth the risk with this situation and what I know about the property itself. I HAVE TO GIVE IT A GO! Neighbor I was working with got his case dismissed with prejudice on the quiet title. I was very stupid 10 months ago on how I approached this, but live and learn and as Jim Rohn said...."Don't wish it were easier, wish you were better!"

    I think you'll soon find out why heirs don't just go through probate. Say the owner of the property has no children, no living parents, no living siblings.  But does have 9 nieces and nephews, 2 of whom died after the decedent.  Lots of moving parts, lots of interest to bring together.  Then there is the dreaded Medi-Cal debt, which is likely on that property. You can end up probating property just for the benefit of paying back debt to the state.  Ask me how I know. Have fun!

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  • David Krulac
    Mechanicsburg, PA · Member since 2013 · 3k+ posts · 2k+ votes
    10y

    Here most of the DPW debt for nursing care is not recorded until after the date of death, sometimes long after DOD.

    At one property the owner was deceased and their was only one heir who lived in the same town nearby.  It seemed strange that the heir didn't probate to get the house, but instead stopped paying the taxes and let the property go to tax sale.  There was no mortgage or other liens on the property.  By contacting the heir, we discovered that there was an unrecorded DPW debt for the decedents nursing care.

    On another property, which was a whole subdivision. there was no mortgage or liens except a nursing home lien.   The nursing home took the property to Sheriff Sale to recover the debt and the whole subdivision was sold.

    Unrecorded mechanics liens and DPW or nursing care liens are a big caution, whether buying property through foreclosure, tax sale or trying to acquire AP.

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  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y

    I had my title company pull title and it looked clean. Could this lien be hidden until a full title search is done? People on the deed have been dead for 15 years. Medical liens thatis?

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  • David Krulac
    Mechanicsburg, PA · Member since 2013 · 3k+ posts · 2k+ votes
    10y

    @Mike Flora

    Could be.  Mechanics liens and welfare, and nursing liens are often NOT recorded.  Since they are NOT recorded, and pulling title only shows recorded liens, a clear title report is not necessarily complete.  In some of the cases that we have worked, the owner was deceased for years and welfare/nursing liens were still unrecorded.  But if you're doing an AP, particularly a long one like the 21 years here (in PA), you're open for the next 21 years for that unrecorded lien to become recorded.  They could even possibly foreclose on the property using there lien before you complete the 21 year time frame and blow up your AP if there claim is significant or even exceeds the value of the property.

    And in the case I cited above, we found out about the UN-recorded deed by contacting the heir.  It was a red flag that the only heir lived very close by and was not probating the will with respect to the decedents home.  There were excess fund from the foreclosure sale that went to the welfare/nursing un recorded lien, on my insistence, but it was not enough to cover the full amount of the lien.  Some times they never record the liens, sometimes they are very slow in recording the liens, and sometimes they'll record their lien quickly, and you are in a race to complete, your recording, your Quiet Title or your AP before their recordation. 

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  • Neil G.
    Investor · Socal · Member since 2015 · 222 posts · 34 votes
    10y

    In order to secure a 'lien' against a property (in CA) don't you have to get a (monetary) judgement? Which requires summoning the holders of the deed (or in the case of an estate, next of kin), discovery, settlement hearing, trial, etc??

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  • Rick H.
    Lender · Greater LA/Orange County area, CA · Member since 2012 · 3k+ posts · 3k+ votes
    10y

    @Mike Flora You've just described the issue. 

    If Department of Health Care Services (DHCS) has provided services, an obligation has been created in the form of an unsecured debt. A claim, but not a lien.

    These debts are unsecured and do not should up as liens. At one time DHCS had the power to file liens but law and policy changed around 1993 which now requires the agency to have the DOJ file suit and obtain a judgment. The AJ then attaches to any and all assets owned by decedent. 

    The DOJ will also sue all fiduciaries and beneficiaries of a trust established for the benefit of the Decedent's estate plan. I've seen this happen, have been the guy DHCS asks to help resolve by providing liquidity, and currently have at least one such case.

    In essence, in CA, the DHCS claim is a black box of unknown debt. There are ways to determine the likelihood of a claim, but it will not show up on a title report because it is not a lien. At least not until DOJ has their day in court. 

    Oh, here's another little cow pie to avoid: if the decedent had been married to a recipient of Medi-Cal benefits, that pre deceased spouse's debts are payable from last to die's estate, even if real estate asset was acquired AFTER death of the first spouse. 

    Since this thread is about AP, not about buying heirs' interests, the question is a bit moot unless DOJ wakes up and sues during the running time of your adverse possession. This has not happened to me yet. But there's always a first time.

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  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y
    Originally posted by @Rick H.:

    @Mike Flora You've just described the issue. 

    If Department of Health Care Services (DHCS) has provided services, an obligation has been created in the form of an unsecured debt. A claim, but not a lien.

    These debts are unsecured and do not should up as liens. At one time DHCS had the power to file liens but law and policy changed around 1993 which now requires the agency to have the DOJ file suit and obtain a judgment. The AJ then attaches to any and all assets owned by decedent. 

    The DOJ will also sue all fiduciaries and beneficiaries of a trust established for the benefit of the Decedent's estate plan. I've seen this happen, have been the guy DHCS asks to help resolve by providing liquidity, and currently have at least one such case.

    In essence, in CA, the DHCS claim is a black box of unknown debt. There are ways to determine the likelihood of a claim, but it will not show up on a title report because it is not a lien. At least not until DOJ has their day in court. 

    Oh, here's another little cow pie to avoid: if the decedent had been married to a recipient of Medi-Cal benefits, that pre deceased spouse's debts are payable from last to die's estate, even if real estate asset was acquired AFTER death of the first spouse. 

    Since this thread is about AP, not about buying heirs' interests, the question is a bit moot unless DOJ wakes up and sues during the running time of your adverse possession. This has not happened to me yet. But there's always a first time.

     Man!! A ton of stuff to think about. When the neighbor was in court and had his ruling on the property he stated nothing of any medical debts coming up at all. Could these debts come up after court and he were to actually take posession of the property and transfer of title???? Wouldn't these problems arise in court during his quiet title case?? Rumor of a daughter out there and I want to find her, pay for her probate and give her cash for the property once title in my name. I know it will only need a probate referee as well due to the appraisal upon death will be below 150K. If only the daughter is still alive and I find her with no other siblings then she could be the executor of the estate correct??

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  • Account Closed
    Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    10y
    Originally posted by @David Krulac:

    Here most of the DPW debt for nursing care is not recorded until after the date of death, sometimes long after DOD.

    At one property the owner was deceased and their was only one heir who lived in the same town nearby.  It seemed strange that the heir didn't probate to get the house, but instead stopped paying the taxes and let the property go to tax sale.  There was no mortgage or other liens on the property.  By contacting the heir, we discovered that there was an unrecorded DPW debt for the decedents nursing care.

    On another property, which was a whole subdivision. there was no mortgage or liens except a nursing home lien.   The nursing home took the property to Sheriff Sale to recover the debt and the whole subdivision was sold.

    Unrecorded mechanics liens and DPW or nursing care liens are a big caution, whether buying property through foreclosure, tax sale or trying to acquire AP.

    Medi-caid debt (Medi-Cal) debt is almost always a "silent lien" here.  The state expects to be paid back after the recipient dies. The state, for the most part, doesn't chase the debt.  They are noticed during probate actions here.  However, it's entirely possible to avoid Medi-Cal debt with the proper transfers prior to the date of death. It takes planning, but It's catching on in my farms.

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  • Account Closed
    Investor · Central Valley, CA · Member since 2012 · 6k+ posts · 3k+ votes
    10y
    Originally posted by @Mike Flora:
    Originally posted by @Rick H.:

    @Mike Flora You've just described the issue. 

    If Department of Health Care Services (DHCS) has provided services, an obligation has been created in the form of an unsecured debt. A claim, but not a lien.

    These debts are unsecured and do not should up as liens. At one time DHCS had the power to file liens but law and policy changed around 1993 which now requires the agency to have the DOJ file suit and obtain a judgment. The AJ then attaches to any and all assets owned by decedent. 

    The DOJ will also sue all fiduciaries and beneficiaries of a trust established for the benefit of the Decedent's estate plan. I've seen this happen, have been the guy DHCS asks to help resolve by providing liquidity, and currently have at least one such case.

    In essence, in CA, the DHCS claim is a black box of unknown debt. There are ways to determine the likelihood of a claim, but it will not show up on a title report because it is not a lien. At least not until DOJ has their day in court. 

    Oh, here's another little cow pie to avoid: if the decedent had been married to a recipient of Medi-Cal benefits, that pre deceased spouse's debts are payable from last to die's estate, even if real estate asset was acquired AFTER death of the first spouse. 

    Since this thread is about AP, not about buying heirs' interests, the question is a bit moot unless DOJ wakes up and sues during the running time of your adverse possession. This has not happened to me yet. But there's always a first time.

     Man!! A ton of stuff to think about. When the neighbor was in court and had his ruling on the property he stated nothing of any medical debts coming up at all. Could these debts come up after court and he were to actually take posession of the property and transfer of title???? Wouldn't these problems arise in court during his quiet title case?? Rumor of a daughter out there and I want to find her, pay for her probate and give her cash for the property once title in my name. I know it will only need a probate referee as well due to the appraisal upon death will be below 150K. If only the daughter is still alive and I find her with no other siblings then she could be the executor of the estate correct??

    Medi-Cal debt is typically unrecorded. An AP quiet title action doesn't have to notify Medi-Cal.

    As for heirs, it's not who is still alive.  It's who was alive and in line at the time of the death of the decedent.  10 years is a lot of time and heirs die all the time.  Then their heirs inherit.  And you often need a probate for their estate(s).  I did a triple probate for one property.  Never again!

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  • David Krulac
    Mechanicsburg, PA · Member since 2013 · 3k+ posts · 2k+ votes
    10y

    @K. Marie

    here some are misinterpreting the 5 year look back as if you haven't heard from Welfare in 5 years you're ok!

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  • Account Closed
    Investor · Honolulu, HI · Member since 2013 · 3k+ posts · 1k+ votes
    10y

    Geez guys, as much as everybody loves something for {nothing?), there are easier and more profitable ways to invest in real estate that does NOT involve taking from the dead.

    1Reply
  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y
    Originally posted by @Account Closed:

    Geez guys, as much as everybody loves something for {nothing?), there are easier and more profitable ways to invest in real estate that does NOT involve taking from the dead.

     Lol, your right Bob, but if you add the hard deals on top of the easy ones your getting more deals than the next guy. Anything with courts for a new guy like me is just not gonna work out very well but the knowledge I'm getting from all of you is great!!! I thank all of you for your input. I'm sticking with off market properties after my last probate deal went south, but gonna give one last go on this one I THINK, before passing it on to Rick.

    1Reply
  • Rick H.
    Lender · Greater LA/Orange County area, CA · Member since 2012 · 3k+ posts · 3k+ votes
    10y

    @Account Closed I don't of renovating an abandoned, blighted property and paying back taxes and putting it into productive use as "stealing from the dead". 

    Frankly, you comment is unnecessary as its public policy in ALL 50 US states and commonwealths. 

    The difficulty comes when people who have not fully researched the statutes and case law try to apply AP. like a kid with a shiny new bicycle tool, anxious to use it but often recklessly. 

    My hearing on Thursday inspired the judge to comment that he was impressed that I took a risk and will benefit. Has I been a respondent/defendant in an AP case gone bad he would had never made that comment. 

    I think the Aguaya case is an extreme example of attempts to abuse both the spirit if the law as well as living, breathing persons who were cheated. 

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  • Account Closed
    Investor · Honolulu, HI · Member since 2013 · 3k+ posts · 1k+ votes
    10y
    Originally posted by @Rick H.:

    @Account Closed I don't of renovating an abandoned, blighted property and paying back taxes and putting it into productive use as "stealing from the dead". 

    If you are going to quote me please use MY actual words.  "Stealing" is YOUR word.  How did you come up with that?  Feeling guilty?  Didn't the Judges pat on the head assuage your conscience?

    0Reply
  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y

    Rick, sent you a message. Good luck!!! After this last probate going south and the time and variables involved with this I am passing it on to you. You have the experience to make something happen here. I'm way to new to be jumping into this stuff at this time, but probably will in the future. I'm sticking with off market easy numbers for now!!! Lol 

    0Reply
  • Adrian Tilley
    Residential Real Estate Agent · Broomfield, CO · Member since 2013 · 390 posts · 125 votes
    10y
    Originally posted by @Mike Flora:

    right around the corner, done my research and no heirs found at all, vacant for 15 years, county recorder has only both dead names on the deed and property owner occupied by them. So 15 years vacant with no one ever seen around property, two dead deed holders since 2000 and late taxes which I paid up and changed addresses to me and the people who were paying it have no relation to dead owners whatsoever. 

     This is law school 101.  The answer to the question you didn't ask is that "there are always heirs".

    I don't know how you can just change the tax address to your name, but I would be very careful.  At the least, I think you're risking trespass, maybe B&E, fraud, and maybe other offenses.  Talk to a California attorney.

    1Reply
  • Mike Flora
    OP
    Investor · Menifee, CA · Member since 2015 · 534 posts · 216 votes
    10y
    Originally posted by @Adrian Tilley:
    Originally posted by @Mike Flora:

    right around the corner, done my research and no heirs found at all, vacant for 15 years, county recorder has only both dead names on the deed and property owner occupied by them. So 15 years vacant with no one ever seen around property, two dead deed holders since 2000 and late taxes which I paid up and changed addresses to me and the people who were paying it have no relation to dead owners whatsoever. 

     This is law school 101.  The answer to the question you didn't ask is that "there are always heirs".

    I don't know how you can just change the tax address to your name, but I would be very careful.  At the least, I think you're risking trespass, maybe B&E, fraud, and maybe other offenses.  Talk to a California attorney.

     Yes, very careless and wreckless of me way back last year. Learned my lesson. Learned a lot about adverse posession and quiet title as well.

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