Ask the TITLEMAN™ - Types of Liens; Adverse Possession
by John T. Lotardo aka TITLEMAN™
Sr. VP/General Counsel, Stewart Title & Trust of Phoenix, Inc.
Q. I have a question. How can I find a list or lists of every type of lien or judgment than can be put on property? There are probably many.
A. Your question is more complex than you may think. There are many types of liens that can attach to real estate. The two major types are consensual and nonconsensual. Consensual liens are ones that are agreed to by the owner, such as a deed of trust. A nonconsensual lien is one that has not been agreed to such as a judgment from a credit card company. With that said, there are many varieties of liens whether a tax liens, mechanic lien, HOA lien, etc, that show in the course of a title examination. You could contact the local recorder’s office to see if they have listing of them for your easy reference.
Q. I really don’t know what I should do. My neighbor is going to take 3 or 4 inches of my property for his new gravel driveway. It is not too important except that my sprinkler pipes go right near there. What would you suggest - I really can’t afford a boundary survey, civil action etc. I really appreciate any help you can give. Do you think just a letter would suffice?
A. It sounds like you are questioning how to proceed and whether you want to create an issue over this or not. You could always make a demand to stop him from encroaching onto your property or you’ll take further action. But it sounds like you may want to work it out amicably, which seems to work out better for neighbor relations. But, I would have to say that once he “crosses the line” by realigning his driveway, you are permitting him to possess adversely those few inches of your property. In time, you could lose title to that space under the legal theory of adverse possession. One way to avoid this, believe it or not, could be to voluntarily grant your neighbor a license to use that bit of your property. By giving express written permission through a license you can negate the idea that it was without your permission (and no longer adverse). Also, it gives you the opportunity to rescind it should he not cooperate in allowing you to fix your sprinklers pipes if they ever need to be repaired (and take it from someone who has done his fair share of sprinkler repairs, they’ll need fixing). What you could do is send him a letter granting him as the owner of the neighboring property the revocable license to use the few inches, placing gravel, etc. on the condition that he (and future owners) either will repair the pipes underneath at his cost when needed or permit you to repair them (whichever makes sense to you). Have him accept the terms and then have it recorded. Don’t forget to include the legal descriptions for both properties in order to easily find it in the county records.
The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Copyright John T. Lotardo. All rights reserved. John Lotardo (aka the TITLEMAN™) is Senior Vice-President and General Counsel for Stewart Title & Trust of Phoenix, Inc., and State Underwriting Counsel for Stewart Title Guaranty Company. He is a member of the National Advisory Councils for GoGetEscrow.com, GoGetLoan.com, GoGetNotary.com and GoGetRealEstate.com. The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. For more about John, visit: www.GoGetEscrow.com/Get/Titleman or www.AskTheTitleman.com.