Evidencing Adverse Possession by Existence of Fence, in Texas

[JrFish]

My question involves real estate located in the State of: Texas

Purchased residential property about 3 years ago. Existing 6' wood fence stands approximately 10' beyond the property line as indicated by the survey, encroaching into the neighboring property. Adjoning neighbor has owned the property for approximately 8 years.

The fence is well over 10 years old, likely 20. Use has been undisputed and peaceably enjoyed since before either of us owned the property. Based on what I have read, it is my belief that I have established adverse possession of the property at this point.

The survey from the previous owner I have was initialed by that owner 10-2001. The survey indicates the existence of the fence and shows it exceeding the property line by specific distances. So based on that date I have not quite hit the 10 year statute. But in reality, the fence was established prior to that.

So, my questions: Am I legally sound and correct in my Adverse Possession claim, or are there some large holes in my argument? How do I evidence the historical use to uphold my claim? Perhaps there are additional dates or info on the survey that I am overlooking that would evidence the existence of the fence. Is the date stamped below the Surveyor's seal (6-19-1998 in this case) a date of actual survey or just a date of surveyor's license?

Thanks in advance for any direction and guidance

[LandSurveyor]

it is my belief that I have established adverse possession of the property at this point

At best, you have established a claim of adverse possession.

What it takes to establish ownership under adverse possession requires you to sue in county court and prove all of the particulars required by law (the entire burden of proof in every particular is upon you) without exception. It is not a do-it-yourself project where you fill out some forms and turn them in after getting them notarized. So you will need an attorney to get this started. Budget several thousand dollars if the neighbor does not immediately roll over and agree. You might be entirely correct in your claim but understand how the procedure plays out before launching it.

Even if the neighbor is in complete agreement, you will still have attorney fees, and an entirely new survey of your parcel and the neighbor's parcel will be required, and the neighbor won't be paying for that either. If the neighbor disagrees with your claim, be prepared for an expensive and time consuming ordeal.

[JrFish]

Thanks for the quick input. Can you shed any light on the dates I see on my survey? Is the signature and date below the State of TX seal the date of the survey?

[LandSurveyor]

Yes, that is the most likely the date the survey was signed and sealed.

[JrFish]

Thanks for the input Surveyor.

Anyone else have experience or input regarding the validity of my claim, or specifics regarding "the particulars" I will have to prove?

I will review with an attorney this week. It appears to me that the survey from 1998 evidencing the current location of the fence is pretty solid and straightforward, giving me the 10 years required by the statute. The other aspects of the statute are not so clear to me. Particlarly "(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument". Not sure what that is getting at.

I believe I have fulfilled the other aspects of the statute that I have read, such as peaceable and visible possession for the minimum duration required by the statute. Does anyone see any potential 'gotchas'? Such as the length of time he and I have owned the respective properties? The review of survey and title on our purchase dates does not effect the duration of the peaceable possession does it, or serve as any kind of notice does it? He would have to have had provided written notice to vacate the property to myself or the previous owner before the expiration of the statute, correct?

Thanks again for anyone’s consideration of my issues.

[Newtons_Apple]

You should canvas the neighborhood and ask the "old timers" if they remember when the fence was built, and would be willing to be deposed or offer written testimony concerning those statements. Texas does allow "tacking", which is the adding up of continuous possession by separate owners. In other words, the time that the previous seller of your property possessed the fenced area will count towards your claim.

Your neighbor could have given you permission to allow the fence to remain in it's position; ie he wrote you a letter stating that he knows full well that the fence is over the line, but he still grants you permission for it to be there. Permissive use typically defeats adverse possession.

Also adverse possession will typically not be allowed against the disabled (I don't know if your neighbor is disabled, I'm just bringing this up for information's sake.)

You'll want to check the county records to be sure your neighbor has not filed an affidavit rejecting an adverse possessor's claim. I would think that your neighbor has seen your survey and might have acted to protect his interests some time ago. Again, I'm just bringing this up as information to check on before going through costly litigation.

Lastly, does your fence meet the requiremnts: "Otherwise the key to determining boundaries is what area is fenced in as a “designed enclosure” - not just a 'casual fence'."

For your own information, I would read this article.

[LandSurveyor]

As I have pointed out over the years on this forum (and as recently as this week) Texas has the most involved, complicated, convoluted, and unique laws regarding adverse possession of any state.

(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument

I would read that as a requirement of having "color of title" at the very least. That would require that you have a deed or other evidence of title for the land you claim. You can google the term for more information, but the term will be interpreted in Texas however Texas courts have interpreted it in the past. Your post does not indicate that you have color of title. The clause also seems to require that the legal description in the document (usually a surveyor's description) actually includes the land you wish to claim as already being owned by you.

Your local attorney will be able to sort this out for you and predict your chances much better than I can here.

[JrFish]

Thank you for all the info, and yes I have read that article several times.

What does that last statement mean? Based on summaries of that case reference, ( http://www.11thcoa.courts.state.tx.u...OpinionId=7488 ) it appears to me that a 6' wood privacy fence which clearly delineates and separates one backyard from another would meet the requirement to "designedly enclose" and could not be considered just a "casual fence".

Thanks again for the thoughtful input.

Thanks surveyor. No it does not appear that I have any 'color of title'. That part of the statute is very confusing and I will have to leave it to an attorney to interpret for me. That could be the 'gotcha' I'm concerned about.

I will try and meet with one this week and will post the results of that meeting.