PROPERTY LAW: ADVERSE POSSESSION

                At Parnell, Michels & McKay, we handle a fair amount of property litigation cases. One such type of litigation are claims made through adverse possession. It is one of the oldest forms of law in property, and involves the taking of title to property without having to execute a written deed. It most commonly arises in boundary line disputes, and can involve something as innocuous as the misplacement of a fence by a friendly neighbor. However, the effects this doctrine can have on people’s property can be immense, so it is important to try to understand the concept of adverse possession and to seek legal advice as soon as possible.

                Basically, the initial test is whether the person claiming adverse possession has acted as the true and lawful owner of the property. The reason being is an adverse possession claim must be open, notorious and continuous throughout the statutory period.  Open means that the claim is obvious. In our sample above, it is the placement of a fence across the boundary line of a neighbor. This can also be done in the form of farming, building an addition on a house, or just simple planting bushes and trees and tending to them over time.

               

                The claim must also be “notorious”, which is a nicer way of saying that use of the neighbor’s property cannot be by that neighbor’s permission. It is ok to be operating under a mistake of where the true boundary line is, but if the neighbor is aware of the issue and says its ok, then there is no “adverse” possession.

                The final part is the use must be continuous for the statutory period. In New Hampshire, this means for twenty years. So, in our example above, the neighbor (or his predecessors) would have had to have the fence on his neighbor’s property for twenty continuous years.

                Adverse possession can also be found in roads, paths or even beaches. In each situation, the factual circumstances become integral to the case. In these situations it is always important to consult with an attorney who handles boundary dispute litigation. Our firm regularly handles boundary dispute litigation, including adverse possession cases.  So, if you believe an adverse possession issue exists on your property, contact the experienced attorneys at Parnell, Michels & McKay to discuss your rights.

Revocable Trust v. Will: What is the best choice for you and your family?

            We often get questions on whether a client should have a will or a trust, and what the benefits of each are. For each client, there are benefits to both types of estate plans.

            Wills are simple and can be much cheaper to complete then trusts. They direct where your property goes when you pass into the great beyond, and they can provide direction to your family when they deal with your passing. However, wills can sometimes be inefficient to deal with the property in a way that you want, and they require the will to be probated in Court. They are also public documents that can be viewed at Court, and for some more private people that can be a problem.

            Revocable trusts provide clients with more options on how to deal with their property. A trust can avoid the problems of probate, and address specific situations like what happens if you become incapacitated. Trusts are private agreements and do not become public records. They can provide a trustee to make decisions if a beneficiary is not properly prepared to receive the property. A trust can be effective for life, and most importantly you can maintain control over your assets during your life. Trusts also can provide protections for situations like divorce or drug abuse, and allow a person to maintain control over their assets during their life. There are some cons to trusts as well, like the cost which is more expensive than wills. Trusts can be time consuming, and may involve other potential costs as part of the trust’s creation.

            There are also ways to essentially combine a will and trust with what is called a “pour over clause” in your will. In this situation, you can create a trust through that provision which effectively funds the trust at the time of your passing. Any such provisions need the careful attention of an estate planning attorney who understands the estate process.

            No matter what you choose for yourself and your family, it is always important to get proper legal advice on which options would benefit you the most. The experienced estate planning attorneys at Parnell, Michels and McKay can help you determine which options are best for you, and prepare an estate plan tailored to your needs. Should you be interested in finding out which options work best for you, contact our office to schedule an appointment. 

Mounting Debt: Is Bankruptcy an option?

                 During the housing crisis in 2008 and 2009, many people started losing their homes to foreclosure. The job market tumbled, and people all over the country found themselves unemployed and unable to pay their mortgages. Some people had their home values plummet, causing them to be “under water” on their mortgage in that their mortgage balance was higher than the property value of their homes. This caused substantial strife and stress for many Americans as they slogged through the recession in our economy.

                During that time, many individuals turned to bankruptcy to try to save their homes. They also faced aggressive debt collectors and creditors trying to take property and bringing lawsuits against them. Faced with a mountain of debt and no way to pay, many people did not know how to deal with these problems. During that time, the amount of bankruptcy’s filed skyrocketed as people looked to the law to save their homes. Today, the amount of filings has lowered, but the economy has not fully rebounded and people are still facing significant issues paying their mortgages and other bills. Those lucky enough to do loan modifications today find sometimes that even then they can’t pay the mortgage.

                At Parnell, Michels & McKay, we offer over three decades of experience in navigating the difficult bankruptcy and debt collection fields. Our bankruptcy professionals will help you determine the right type of relief for you, whether it is Chapter 7 or Chapter 13 bankruptcy. We offer hands on advice, and will go through all of your finances to determine what the best method is for you to address your climbing debt. As many people may not be aware of, bankruptcy was incorporated into our very constitution. It was one of the pillars in which our country was founded. The concern in colonial times was with people suffering in debtor’s prisons, which happened often prior to the Revolutionary War. The founders of our country, including Thomas Jefferson, created the right to file a bankruptcy to address when American citizens face the very real pressure and stress of owing more money than they can pay. This is why bankruptcy is an important part of our American jurisprudence, and anyone faced with escalating bills should consider whether it is an option for them.

                If you find yourself concerned about your financial future, contact the experienced attorneys at Parnell, Michels & McKay today to see how we can help you navigate your debt problems.