All Forum Posts by: Davido Davido

@Ivan Vargas, 

Vacant and apparently abandoned real estate are problem properties which can be very profitable.  The real estate of a deceased person typically goes through probate. https://codes.findlaw.com/ca/p...   But there are other ways to acquire it, as mentioned by @John Underwood. (Purchase a lien [or put a lien on the property] and foreclose the lien to get the property sold at foreclosure auction -where you can make your lien part of your bid; or simply take over the property and use it as your own [adverse possession] https://www.biggerpockets.com/...; or wait for the local county to sell it for past due property taxes and bit on it at the property tax foreclosure sale.)

Generally, to acquire the property of a deceased person, start by checking whether the deceased had a will?  If he/she did, than the will would be expected to control disposition of the estate.  If there is no know will, then move on to a review of your State's laws controlling Intestate Succession (State law determining who has legal right to the deceased's property). https://leginfo.legislature.ca...     

If you do not need a clear title within a short time frame (year or two). Then your broader time frame for acquiring clear title, also broadens the methods available to acquire ownership.

You can obtain any partial legal interest (purchase the partial interest of any heir), or acquire an equitable interest in the property (a legally recognized financial interest in the property like a lien) and put the property through probate yourself as a partial interest holder.

If the property is vacant and rentable, after obtaining partial ownership from any sibling, you can simply rent out the entire property. It is possible to become partial owner, in complete possession/control of the property and to be in control of the rents. It is possible to partner with some or all of the remaining heir(s). Heirs can continue to rent the property with out ever resolving title.

You can purchase the interest of any person or entity that has an existing lien on the property. In limited circumstances you can place your own lien on the property.  Once you have a lien, most states will allow you to protect and/or increase your lien by taking the steps necessary and prudent to secure and maintain the property.  You can also foreclose a lien in order to force the property to be sold at public auction for repayment of your lien.

As a partial owner who is in possession, or as a lien holder who merely assumes possession, you can use the property as your own -to the exclusion of any remaining heirs. If they don't take legal action to protect their interest, then after 5 years (in California), the Statute of Adverse Possession grants you a defense to any future claims by the remaining heirs.  You then have the right to ask a court to grant you clear title.  https://codes.findlaw.com/ca/c...

There are many ways to deal with problem properties and many ways to profit -if you are a problem solver. Best wishes.

@Ian Turner, "So if I'm reading you right, they could claim adverse possession on the trees and not necessarily be obligated to provide any sort of compensation? Can they claim the ground under the trees which they have been nurturing for, let's say 10+ years?"

Sorry for the confusion.  Adverse Possession is a claim of right to the property title by the mere fact that a nonowner has maintained XX years of past exclusive possession.  A party who succeeds in such a claim owns the property and everything on it.   My comment that I would "leave the trees for a future buyer to deal with" was merely an indication that, if I were the owner of the property and intent on selling it, I would not personally be inclined toward clearing the orchard's trees.

Question 2 of your original post had asked, "If orchard won't deal, ... access is through the orchard easement and developing a home site would require the orchard to be cleared. Again, would the corporation have any legal grounds to prevent the clearing of trees in this case?"   The Orchard would need to prevail in a law suit against you in order to have legal grounds to prevent the clearing of trees that they planted on your property.  The limited facts presented in this post prevent either of us from determining the likelihood of the Orchard filing a suit or of succeeding.   However, your post did mention that your entire property is only 3 acres.   To me it seems unlikely that an orchard corporation would be inclined to spend the resources needed to pursue the potential profit from trees on a portion of 3 acres.  Consider also that, under WA Adverse Possession law, the orchard would only succeed in establishing a right to the property if they can prove that they excluded the property owner from use of the portion of the property they planted trees on.

In regard to your question about the other property, "Could I technically put a fence right through the line blocking access to their shop or do they actually have rights to the land and shop access due to adverse possession and the fact that the shop has been there for 10+ years?"

Be advised that I am not a lawyer. And surprisingly often, I disagree with lawyers any way. https://www.biggerpockets.com/...   However, I do work with Adverse Possession in Wa. more often than most WA. attorney's do.  So consult an attorney, but here are my thoughts.  Yes. If you hold title to the property you have the right to put a fence across your property line even if it blocks trespassers.   HOWEVER, doing so could certainly provide the incentive needed for them to file a claim of right to that portion of your property.   Then you'd both have legal expenses.

Sound's like your best option is to both continue bargaining with them regarding selling your title to that portion of your property, AND, at the same time bring some pressure on them by beginning to construct an inexpensive fence across your property line.  Just make it clear that the cost of purchasing from you, will be less than the cost of fighting it out in court with you.  Starting a fence, whether ever completed or not, will also establish that you, the property owner, are using that portion of your property (parking vehicles there, storing your fencing materials there, etc.).

Any use of that portion of the property is important, because for the trespasser to succeed in getting a court to grant them title to your property, under a claim that they've continually possessed it in a public manner that was adverse to your interests, -they must also show that they excluded you and other past rightful owners from using that land, and that they excluded the owner continually without interruption for the entire 10 years required to complete an adverse possession.  

Good luck Ian.

@Ian Turner  The Orchard does not need to pay the taxes to establish adverse possession.    

Washington State has multiple laws material to Adverse Possession.  Including a statute requiring only 10 years of adverse possession which does NOT require paying property taxes. https://apps.leg.wa.gov/RCW/de...

Washington also has a law material to Adverse Possession in 7 years,  which does require both Payment of property taxes AND Color of Title (a reason to believe the possessor has a legal claim on title, -even if mistaken). https://app.leg.wa.gov/RCW/def... 

https://www.lawhg.net/news-and...

My thought would be to leave the trees for a future buyer to deal with.  However, I would promptly run an inexpensive wire fence down that property line. It would be neighborly to inform the Orchard, but you have no legal need to interact with them at all. Just use your property as yours. It is not likely they will go through the expense of filing a legal a claim for a few trees. It is less likely that they would prevail.   The orchard would need to prove that they used the property exclusively to the extent that the real owner was excluded from using it at all.  You can defend a claim of adverse possession by the orchard with a cell phone recording of, or a notarized statement from the previous owner establishing his repeated uses of that portion of the property since the trees were planted

@Lee Sillemon III,   These are problem properties which can be very profitable -for a problem solver.  Such a deal would need to go through probate only if you needed a clear title within a year or two.  Those who broaden their time frame also broaden the methods available to acquire ownership.  

You can obtain any partial legal interest and put the property through probate yourself as a partial owner.

If the property is vacant and rentable, after obtaining partial ownership from any sibling, you can simply rent out the entire property.  It is possible to become partial owner, in possession/control of the home and in control of the rents.   It is possible to partner with the remaining sibling(s).  You can continue to rent the property with out ever resolving title.

As a partial owner who is in possession, you can also use the property as your own -to the exclusion of any remaining partial owners (siblings).  If they don't take legal action to protect their interest, then after just 3 years (in Texas), section 16.024 of the Texas Statute of Adverse Possession grants you a defense to any future claims by the remaining siblings and the right to clear title in your name.  https://statutes.capitol.texas...

You could also gain partial legal interest in the property, bill the incarcerated and or other siblings for their share of the property expenses, obtain a judgement against any sibling who doesn't pay their share of the expenses, and use that judgement to foreclose their interest.  

There are many ways to deal with problem properties and many ways to profit -if you are a problem solver.  Best wishes.

What a Grand project.  Congratulations on doing it with class.   Few things are finer for Seniors than conversation with friends around a warming fire in a beautiful setting.  Your story inspires.  Thank you.

I've used https://buddbaylaw.com/?refPag...,  Always took good care of me.

@NA Negrete, Hello Neighbors, 

Your post doesn’t mention whether the deceased had a will. If there was a will, that could change requirements in big ways.

“We are looking for an Attorney or Paralegal that would help our Seller with the "Lack of Probate Affidavit" here in WA. Any recommendations?"

This might be quite straightforward.  Why not call around to multiple local law offices, tell them what you want to accomplish and see how much they would charge. Also, I’d take a look at the typical Affidavit. They are pretty simple. https://dor.wa.gov/legacy/Docs/forms/RealEstExcsTx/Lackofprobateaffidavit.pdf

https://d14unckqtezfjx.cloudfront.net/web/files/Lack_Of_Probates_Separate_Property.pdf

You can check the requirements for a Lack of Probate Affidavit. The Washington Administrative Code (WAC), defines those requirements at: WAC 458-61A-202

https://apps.leg.wa.gov/WAC/default.aspx?cite=458-61A-202

One key point about using a Lack of Probate Affidavit, is that the affidavit,

1. Can only transfer the title to true beneficiaries or legal heirs as defined by the Washington Intestacy Statute.

https://www.limitlesslaw.com/2015/04/24/how-to-avoid-probate-with-a-lack-of-probate-affidavit/

That means, if the deceased was not married at the time of death, but ever had any children, -then it is the children who inherit all right to the property.  In such a case, the Washington Intestate Succession Statute would not grant any right to the father of the deceased.  https://app.leg.wa.gov/rcw/default.aspx?cite=11.04.015

https://www.nolo.com/legal-encyclopedia/intestate-succession-washington.html

In WA, the brother inherits the property only if the deceased was not married, has no living children, and no living parents. It would be great if the title company knows all the relevant facts of the family history, but it is more likely that they are responding only to the information that you give them. So do be aware, that the Lack of Probate Affidavit can only transfer to the father of the deceased such title as the Washington Intestate Succession Statute grants a father.

Of course the father can then transfer his rights to you. It’s only a problem if there are heirs who are unknown to you.  So it may pay to do a double check into the family tree.  The father has only as much right to the property as the Intestate RCW (Statute) gives him.  Best wishes.

@Wayne Brooks  Are you saying that it is no longer possible to bring the taxes current so to remove the property from the tax auction?   What is the reason? 

@Tyler Harvey, In addition to gaining an easement by prescription as mentioned by @Nathan Gesner (Easements are used by multiple people) you could have exclusive rights to the 1.5' of fenced land, whether the neighbor's survey was accurate or not.  Exclusive right to the land could be yours if your fence has been there for seven years and your neighbor has NOT been planting, mowing or otherwise using your side of the fence.  Your right to continued exclusive use of your side of the fence can be established under the Florida Adverse Possession Statutes as mentioned by @Mike McCarthy.  Here is the statute.

https://codes.findlaw.com/fl/t...   , but note that it requires reliance on your recorded Title.  Generally this statute can be applied even if your understanding of the legal description in your title was wrong, but check how the statute is applied by your courts.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(b) When it has been protected by a substantial enclosure. ...

There is another Florida Statute which provides for Adverse Possession if you've paid taxes on another's parcel and used it. 

http://www.leg.state.fl.us/sta...

Nolo.com provides the following info, in part; https://www.nolo.com/legal-enc...

Florida’s Requirements for Adverse Possession

There is no single statute in Florida that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors, over many decades of making decisions in individual cases.

Adverse possession in Florida depends on the nature of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:

1) hostile (against the right of the true owner and without permission)

2) actual (exercising control over the property)

3) exclusive (in the possession of the trespasser alone)

4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and

5) continuous for the statutory period (which is seven years in Florida under Fla. Stat. Ann. § 95.12).

For example, imagine that Mike and Molly live next to one another in Orlando. There is no dividing fence, line of trees, or other obvious boundary between their yards. Mike builds a gazebo that is actually on Molly’s side of the property, covering about ten square feet of earth. Molly doesn’t say anything. Mike uses the gazebo as if it were on his own land. He does this for seven years. Under the rubric described above, Mike can probably establish that he “owns” the land on which he was encroaching. Molly could have stopped Mike by asking, over those seven years, that he remove his gazebo, or sign a rental agreement to make clear that the use was with permission, rather than hostile. But Florida courts won’t let her suddenly eject Mike after she failed to exercise her rights for so many years.

Best Wishes

@Justin Hanson, be aware that the closer the property gets to being auctioned, the more seasoned investors will take an interest in profiting from it.  The messier the title is on that property (more parties with an inheritance and/or multiple liens), the more important it is likely to be that you quickly acquire an interest in the property and remove it from the property tax foreclosure sale sooner rather than later.  

The professional investors who watch Tax Deed Sale lists are specialists in acquiring the interest of heirs and in purchasing liens at the last minute.  Once a professional acquires some lien or hereditary interest in the property, he or she will certainly have a plan for using their new interest to squeeze you or the father of the deceased, out of whatever legal interest (if any) that you or the father have in the property.  

Best to get at least a preliminary title report so you understand clearly who the legal owner was and what liens have been recorded.  Then, if the property still appeals to you -move quickly to remove it from the Tax Foreclosure Sale list, so that it is seen by fewer competing investors.  Best wishes.