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Hi! We have been living in our house for the...

Resolved • Response time 1 minute

22 Jan 2022

Hi! We have been living in our house for the past 12 years. We have a front yard garden, it's been growing and taken care of by us and our previouse house owner for at least 20 years. We need to fix our retaining wall recently so we did a property survey. It shows that a small piece of land of our front garden falls into our neighbor's property, and a small piece of land of our neighbor's backyard falls into our property. At this time, our neighbor asks us to remove the plants in our front garden that fall into their property. However, we have been taken very good care of our plants for the past at least 20 years and we want to keep them. What legal rights do we have to protect these plants please? Thank you!
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: We learned about adverse prosession in GA. However, we haven't done anything yet to start the adverse prosession process. Do we still have legal rights to protect these plants?
JA: Have you talked to a Georgia lawyer about this?
Customer: We are consulting you now....
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Our neighbor is not in a good relationship with us.
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22 Jan 2022

Ask your own question
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Hello! Thanks for using JustAnswer. My name is ***** ***** I am an attorney ready to answer your questions with top-quality service. Just a few quick things before we get started:

  • I’m sorry to hear you are having these problems with your legal issue. I know that can be frustrating. However, we can get this resolved quickly;
  • We are transitioning to a new system to better serve you, so there may be a slight delay in my responses. Your patience is greatly appreciated.

Is your neighbor taking issue to this?

22 Jan 2022
Customer reply
22 Jan 2022
Hi Michael! Thank you for helping us! As I explained earlier, did you get my earlier message about this issue?
22 Jan 2022
Customer reply
22 Jan 2022
If not, I can retype them here again.....
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Thanks! I see it now.

How much square footage are you using?

22 Jan 2022
Customer reply
22 Jan 2022
just a second, we are going out to measure it
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

No problem!

22 Jan 2022
Customer reply
22 Jan 2022
It is a triangle, one side is about 50ft long, one side is about 8-9ft long
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Understood! So you're just wondering what your rights are here, correct?

22 Jan 2022
Customer reply
22 Jan 2022
it's a right triangle
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Got it! I believe I have everything I need, but was there anything else you’d like to add before I answered? If not, I can begin working on your answer.

22 Jan 2022
Customer reply
22 Jan 2022
They want to cut our plants, includeing a dogwood tree and some bushes, and one camellia's root is half on our side and half on their side. Our house is about 30 years old. These plants have always been there, and the garden was like that when we moved in 12 years ago. This neighbor moved in 8 years ago. We have always been taking good care of these plants as our own since we have always believed that they are on our property. The neighbor never asked or take care of any of these plants for the past 8 years. They are not damaging their property either. They said they just want to remove the plants and grow grass on that piece of land to clearly divide their property to our property and wouldn't allow us to walk on their property. In their words: "We don’t need consent or permission from you to landscape our property. As we showed to you during the walkthrough, we want to clearly mark the boundary between our properties and improve our landscape. We have asked you to move the plants that you thought were on your property but were confirmed from the survey to be on our property. After your retaining wall project is completed, please do not walk on our property, tinker with the plants on our property, place objects on our property, or affect existing structures on our property. As for your fence in our backyard, it is properly placed with respect to the property line per HOA guidelines. However, if there are areas that need to be adjusted, please go ahead and move your fence to the adequate setback distance, you don’t need consent or permission from us."
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

No problem! I’ll certainly address that. Anything else you'd like to add you think is relevant before I answer?

22 Jan 2022
Customer reply
22 Jan 2022
Not at this point. This neighbor has been extremely difficult to communicate with. They have tried to give us all kinds of issues for our retaining wall project since we needed their consent to fix our retaining wall, based on the fact that our retaining wall is close to the property line. They have been refusing to give us their consent to use their property by the property line to fix our retaining wall for the past 3 months. They just gave us consent to use their piece of land to fix our retaining wall last night since we sent them a letter explaining that the retaining wall needs immediate attetion to fix since it is a safety hazard already. They refused to give us consent a few days ago unless we agree to remove the plants first.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Got it! I just need a little time to do some research and draft up a high-quality answer. I'll be with you as soon as possible. It won't be terribly long!

22 Jan 2022
Customer reply
22 Jan 2022
Now they made a wise move to give us the consent to fix our retaining wall, however, they insist to remove the plants that fall to their side of property line.... which we have been taking care of for the past 12 years plue the previous owner for at least 20 years.... We want to keep our plants.
22 Jan 2022
Customer reply
22 Jan 2022
Thank you, Michael! We appreciate your help!
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I'm so sorry to hear about your situation!

So I don’t have good news.

Generally, adverse possession of someone’s land requires the actual, open and notorious possession of the land for a specified period. The law would then require that the possessing party go to court and file a lawsuit for adverse possession of the land, attend a hearing, then be granted an order. Using the land without a court order does not create an adverse possession claim as a court order is required. A person’s personal property cannot be touched without the consent or permission of the owner. Plants are considered personal property.

In this case, there was just a mistake into where your property stopped and started. I don’t see here that you obtained a court order that gives you possession of the land. Although you’ve tended to it, because there is no court order, the law would allow them to eject you from this land. You also said they plan to cut down the plants. Because plants are personal property, they cannot do so or else they would have to reimburse you.

In this case, money talks:

  1. You could offer to them to purchase this part of the land;

  2. You could offer to rent this part of a land; or

  3. You could offer to pay for an easement to this part of the land;

22 Jan 2022
Customer reply
22 Jan 2022
Thank you Michael! Can you please help to clarify: Since we don't have a court order, so we don't have the adverse possession of the land. However, the plants are our personal property. So the current situation is - our personal property (plants) are growing on their property. If they cut our plants, they have to reinburse us? Did I understand you correctly?
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Sure thing! Yes, they would have to reimburse you. This is called a "conversion" which is just an interference with your personal property rights.

You may want to consider just writing a cease and desist letter if they continue to threaten you in this case. There’s a site that I’ve used in the past where you can find templates for various legal issues, including a cease and desist letter. You can click the link below for more info.

https://www.etsy.com/market/cease_and_desist

Lawyers use letters like these often to enforce their client’s rights. It only costs $12 and it is about 90% cheaper than hiring an attorney to do it.

22 Jan 2022
Customer reply
22 Jan 2022
Thank you Michael. We are checking out the link. Will get back to you soon.
22 Jan 2022
Customer reply
22 Jan 2022
Michael, if we start the adverse prosession process, what should we do now? How long will it take? How much on avarage it will cost? Will it be too late to do this now to save these plants?
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Sure! So the hard part is that an AP claim wouldn't suffice in this case. Because the other party wasn't aware that the survey was off, then it wouldn't be "adverse." So in this case, I think renting or buying that portion would be easier if they are this concerned about your plants.

22 Jan 2022
Customer reply
22 Jan 2022
Can you please explain what it means by "the survey was off"? There was no survey before. We did a survey recently for the purpose of fixing our retaining wall, that's when they saw some of our plants fall into their side of property. The plants have always been like that for the past over 20 years.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Sure! So what I mean is that since they didn't know that they owned that piece until the survey was done, then it wouldn't be an "adverse" possession. It's "adverse" when the other party knows, but chooses to do nothing, about someone occupying their land. Does that make sense?

22 Jan 2022
Customer reply
22 Jan 2022
When we moved in here 12 years ago, we assumed that the whlole garden was our property since it is all in one piece. We really thought it was our land and we have been taking very good care of it for so long. So it doesn't count for anyting? We love plants, we will feel so sad to loose them in this case. The neighbor doesn't really need to do this, the plants don't do any damage to their property.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I hear you! It's a very, very common thing. But I would just keep close eyes on your plants, and if he does cut them, you can sue.

You may want to consider going to small claims court if they do cut the plants.

It’s designed for people without a lawyer.

You'd have to go to your local courthouse, ask for the small claims forms, draft your complaint, file it, pay the filing fee, then give the copy of the filed document to a third party who would then deliver the copy to the other party. After that, that person who delivered the paperwork would file a document with the court stating that they served the party with the documents on X date, in Y place, at Z time. The court will then schedule a hearing on the matter, you bring whatever supporting documentation you have, make your case, then let the judge decide.

Did you have any other questions for me today?

22 Jan 2022
Customer reply
22 Jan 2022
Thank you very much Michael! We did some research about GA adverse prosession earlier, here is what we found: Georgia state law requires that the person who is trespassing (i.e. the person who is not the property owner) must:Live publicly on a piece of land. This indicates that the public knows that they live there. The individual cannot break in or sneak in and hide on a piece of land for twenty years without anyone knowing and gain possession of the land.
Live on this piece of land or property on a regular basis. An individual cannot just claim that the land is theirs and then move out of state.
Be the sole person living on the property, with their family. A group of unrelated individuals cannot claim possession of a piece of land.
Live on the land for a statutory period of 20 years, or 7 if they have what is called “title of color”.
Make continual improvements to the property as they would their rightful property.
22 Jan 2022
Customer reply
22 Jan 2022
We qualify for all these points to claim adverse process based on my understanding.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I hear you! The problem is that you have to get a court order regarding this. It doesn't happen automatically. Plus, if the other party was not aware that you were using their piece of land, then the possession would not be "adverse." This person had no actual notice you were using their land until the survey was done. So you could try, but in my legal opinion, an AP claim would likely be defeated here.

22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

This is just my own legal opinion, but a local lawyer may have better insight as to how cases in your jurisdiction have been ruled upon.

I don’t have any specific contacts; however, I can do the next best thing.

One thing I recommend is going through your state’s lawyer referral service (LRS). The LRS typically only lists experienced attorneys who have adequate staffing to assist people.

Yelp.com is a surprisingly good place to find lawyers.

You can check out find.lawyer.com - Lawyer.com Free Consultation Lawyer Form - JustAnswer

You can also find a lawyer on the Legal Services Corporation website. The LSC is an independent non-profit organization authorized by Congress in 1974 to help people find legal aid services (https://www.lsc.gov/what-legal-aid/find-legal-aid).

Sometimes, the local law schools can provide free legal assistance, too.

You can also return to this site and ask questions to me as you go through this process to keep your costs down.

Did you have any other questions for me today?

22 Jan 2022
Customer reply
22 Jan 2022
Thank you Michael! We value and appreciate your expertise! I just don't want to give up these plants yet.... From our research, it didn't say anything like the if the other party was not aware that you were using their piece of land, then the possession would not be "adverse." We have been living here for 12 years, in public, we have been taking good care of our garden and plants for the past 12 years plus our previous owner for over 20 years. From what we researched, we totally qualify to claim adverse prosession:
22 Jan 2022
Customer reply
22 Jan 2022
Live publicly on a piece of land. This indicates that the public knows that they live there. The individual cannot break in or sneak in and hide on a piece of land for twenty years without anyone knowing and gain possession of the land.
Live on this piece of land or property on a regular basis. An individual cannot just claim that the land is theirs and then move out of state.
Be the sole person living on the property, with their family. A group of unrelated individuals cannot claim possession of a piece of land.
Live on the land for a statutory period of 20 years, or 7 if they have what is called “title of color”.
Make continual improvements to the property as they would their rightful property.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I hear you1 So I put my opinion about this just up above when you posted it earlier and suggested a consultation with a local real estate lawyer in this case. It's hardly as simple as what you may find online, but I don't have a crystal ball, and I cannot tell you for sure that you'd lose. It's just not a case I would take on the grounds that the adverse possession wasn't truly adverse since the person didn't even know you were occupying the land.

Did you have any other questions for me about this?

22 Jan 2022
Customer reply
22 Jan 2022
We live publicly on this piece of land. Public knows that we live here. We didn't break in or sneak in and hid on this piece of land, we live here every day, we are not moving out of state, we are teh sole people living on this property with our family, we have been making continual improvements to the property as we would our own rightful property.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I hear you! I don't know if I can provide any further analysis on this than I already have. piddd2

22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Did you have any other questions for me about this?

22 Jan 2022
Customer reply
22 Jan 2022
I understand. Thank you so much Michael for your time and help!
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

You bet! Thank you for trusting JustAnswer with your question. PLEASE USE YOUR MEMBERSHIP! On top of lawyers, you have access to thousands of experts including:

In any event, my name is ***** ***** I want you to come back by clicking this link. https://www.justanswer.com/law/expert-dmwesq/.

In the meantime:

  • You can save me as a favorite if you would like.
  • Tips of course are never required, but always appreciated.
22 Jan 2022
Customer reply
22 Jan 2022
oh, one more questions, about the reinbursment of our plants
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Sure! What was your question for me on that?

22 Jan 2022
Customer reply
22 Jan 2022
We went to the site and read about the Cease and Desist collection, it says it is for harrassment, but we don't really have harrassment now... Do we still need it
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Oh no problem - it's just a template, so you could change it however you want.

You may want to consider just writing a formal demand letter, demanding they don't touch your stuff. That's a different template you can use.
https://www.etsy.com/listing/674752957/demand-letter?ref=listings_manager_grid

22 Jan 2022
Customer reply
22 Jan 2022
How can we use the Cease and Desist Collection to explain to our neighbor that if they cut these plants, they need to reimburse us? And how do we determine how much reimbursement they need to make to us please? Hopefully they will change their mind if they see that they need to pay us if they cut the plants. Also, if they decide to not cute the plants, who should be taking care of these plants in the future?
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

Thanks so much! I think we responded at the same time.

You can tell the neighbor that it'd be a "conversion" of your property, and a court could order the fair market value be returned. There isn't a bright-line rule as to how much it's worth, but you can start thinking now about if you were to sell them how much you'd get to get a figure.

I'm so very sorry, but I do have to run unexpectedly. I will be back in just about 30 minutes. My apologies! I'll be back ASAP!

22 Jan 2022
Customer reply
22 Jan 2022
The plants are our personal property, but they grow on their property, and they don't allow us to walk or take care of our plants on their property.
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I hear you. It doesn't matter if they grow on his property. They're still yours and separate from the actual real estate.

22 Jan 2022
Customer reply
22 Jan 2022
we can still walk on their property to take care of our plants?
22 Jan 2022
Customer reply
22 Jan 2022
Thank you Michael! We will wait for you here. Appreciate your expertise and help!
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

So it's very much of a gray area. You can go on the land to remove your things, but there isn't a right currently to access the land to just tend to the plants. The reality is that a court would have to intervene if you and the neighbor can't reach an agreement.

22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle
Attorney

I do have to run, but I'll be back to follow-up if you have new questions!

22 Jan 2022
Customer reply
22 Jan 2022
OK. Thank you Michael!
22 Jan 2022
Lawyer's response
22 Jan 2022
Legal Eagle
Legal Eagle

You bet!

Customer rating:
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22 Jan 2022
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Customer reply
22 Jan 2022
Hi Michael, are you back?
22 Jan 2022
Customer reply
22 Jan 2022
Question: Our neighbor said that if we don't remove the plants by 1/23, they will remove them. Can they remove them without our permission?
22 Jan 2022

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