I talked with a client recently and he raised a question to me. He said, you are a lawyer, and if have no good idea over this, never do I. With his permission in advance, I am putting the case here for you to have a look.

Here is the story.

A few years back, my father divided and deeded his property to his children retaining a Life Estate in each parcel.  My brother built a fence on the property deeded to him which encroaches on the property that my folks currently reside on by a few feet.  My father pointed this out while the fence was being built.  However, my brother continued to build it.

My understanding is that legally, my father has possession of all the parcels by virtue of the life estate retained.  So, he could just remove the encroachment if my brother refuses to.  However, he wants to keep the peace.

He hopes to resolve the issue by a signed agreement between he and my brother in an effort to avoid later adverse possession issues.  If permission granted, no adverse possession right?

I am not a real property attorney, so I'm unsure what his best approach should be.  My advice would be to have him remove it, if they want to avoid future issues.  But, he doesn't want to do that.

It seems like if he and my brother enter into a written agreement of some sort, that it would be only for the term of the life estate, as that is all my father has.  If so, when does the Statute Of Limitation for AP begin to tick, when the property becomes possessory by the future interest holder?

Also, if a written agreement is entered into, should it be in the form of a temporary easement?  All suggestions, issues that might arise, etc. are most welcome.

Here is my response:

You have just experienced the story of five blind men who each describe an elephant by feeling only a portion of the overall animal. The question of a remainderman's interest and the possibility of litigation is not what Father wants.

Assuming that the brother, together with the other siblings and the father, all want a peaceful solution, I strongly suggest you research whether a quit claim deed from brother to father and to the other remainderman would prevent brother from profiting from his misplacement of the fence. If brother refuses to cooperate, then you have an entirely different family situation.

Again speaking of China law, Father deeded the property on which Father and Mother reside to a remainderman. The remainderman, having an "interest" in the property, is authorized to file litigation against the person encroaching on the property. Thus, Father and Mother do not need to get into the battle. If the designated remainderman does not want to defend, so be it.