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  1. #1
    Join Date
    Apr 2011
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    6

    Default Fence Built by Non-Property Owner Without My Permission Over My Property Line

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

    I own a few acres of pasture and do not own any animals. A few years ago someone erected a barbed wire fence on my property and I assumed it was the adjoining property owner who has livestock. In 2006 I had a survey conducted and learned that the fence was over my property line a yard for about 500 ft. I learned this year that the person responsible for erecting the fence was the POA/Executrix for the adjoining property owner on the opposite side. The adjoining property owner passed away this year and I'm an heir to their estate. The executrix who was keeping animals on my relative's land (and also on mine since there is no fence between) claimed that they did not know that I owned the property.

    I have written the executrix to request that the overbounds fence be removed and rebuilt as an expense to the estate.

    What chances do I have to resolve this legally without a lawyer?
    Does a 4 year statute of limitations apply in this situation? It seems absurd if so since they did not have the right to build on my property to begin with.
    Can I destroy the overbounds fence if I can't resolve this with the executrix and the other property owner with cattle doesn't want to pay to build that section?

  2. #2
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
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    395

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    A few questions before a meaningful response can be given:

    1. Have you gotten any kind of response from the executrix?

    2. Is the executrix also an heir and have you spoken with the rest of the heirs?

    3. If you are an heir, don't you have some level of influence with regard to the other property?

    4. Why did you wait 4+ years after the survey showed the fence over the line to address this?

  3. #3
    Join Date
    Apr 2011
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    6

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    1. She just received my letter and I'm awaiting a response. I cc'ed the other property owners and the probate attorney.
    2. Yes. My relative never married and had no children. The executrix lived away for all of our lives until the last few when she in when my relative was placed in a nursing home the last few years of their life. My family was next door neighbors to my relative for our growing up years and we spent all holidays together in addition to lending them help with their property. Their will bequeaths over 80% of his estate value to the POA/Executrix. She was bequeathed the home and 40+ acres. The remaining acreage is to be split equally between cousins and she's the one administering the estate. I have spoken with my sister. The other heirs I'm not close to- I'm the youngest of all the cousins and the executrix the oldest. Should I also send them a copy of my letter? I would prefer to do this as I don't trust the executrix to represent my grievance in a fair light. However, two of the heirs are her siblings so no confidence that they'd be impartial.
    3. No- I don't think so. The way the will is written the only bequest is my relative's home and 30+ acres that they left to the executrix. The rest is a remainder estate to be split equally among the heirs after all debts, expenses have been covered. She is also included in the remainder estate, however. I put on my property hat now to resolve the fence issue as a part of the estate settlement and prior to a family meeting to discuss the division/settling of remaining property.
    4. I'm in grad. school with limited means. I assumed it was the largest adjoining property owner and tried to phone him but his number was disconnected. At that time I didn't know my cousin had POA over my relative. I didn't suspect it was my relative and didn't contact them at that time. My relative was not at all progressive or diligent about investing in property and they knew well the boundaries of the properties as we both had lived there all our lives so I never suspected them. I was ok with my relative having grazing access on my property- but learned later it was not my relative's animals.

  4. #4
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
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    395

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    I'd be surprised if the TX statutory time period for the ripening of prescriptive rights (where someone else gains an ownership or use interest over your property) is as short as 4 years, but I don't know as I haven't looked it up. Assuming the time period is longer, you have stopped the clock running on the formation of such a claim. but then it was your survey that was completed 4 years ago. How long has the fence been in place? That is what is going to matter in terms of meetig the statutory time period.

    I'd also say that until you receive a reply the executrix, who apparently is also some form of relative, you may be worrying over nothing. She may be willing to move the fence upon seeing your survey. If not, if she is going to contest your surveyor's findings, she would have a hard time doing so without having her own survey performed. If she decides to take no action, consult an attorney before removing the fence.

    Generally, if you give proper notice (defined by verifiable delivery method and allowance for reasonable time for other party to respond), you can remove the fence yourself if the other party refuses or declines to. There are also responsibilities with regard to preserving the materials. You can't just rip it out and leave it in a heap of mangled posts and tangled wire on the other property. Generally, you would have to take reasonable care to preserve the materials in a useful form so that the other party could then rebuild the fence on their property. If there is livestock, domestic pets, or children being contained for their own safety by the fence, you may also, if you chose to remove the fence from your property, be required to rebuild it in the proper location or otherwise provide for the continued containment of whatever the fence is keeping in.

    That sounds like a lot of time, expense and responsibility for someone just seeking to reclaim their property separated by another's fence, but there are good reasons for those guidelines. Your recourse at that point would be to sue for recompense of your expenses incurred to remove the fence.

    Legal action is expensive and stressful to contemplate. Wait for the executrix's response before you lose sleep over this.

  5. #5
    Join Date
    Apr 2011
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    6

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    [QUOTE=eapls2708;511803]How long has the fence been in place? That is what is going to matter in terms of meetig the statutory time period.

    I think the fence has been in place since 2005. Why does it matter if the fence was not built on property belonging to my relative? The property boundary I shared with the relative was to the west several acres, across a major perennial stream and a few more acres. The fence erected was between the cattle owner property owner and I.

    The other thing I addressed in the letter was that the original barbed wire fence was left in a mangled heap and not discarded appropriately when the new fence was built. I don't have animals, but I plan to plant trees in the next year or two and it poses a threat to equipment not to mention wildlife and animals. I don't have animals and it would seem the proper responsibility would fall upon my executrix cousin on one side with animals and the property owner on the other side to fund any fence to contain their own animals...as I try to raise new seedling pines in the middle. Thoughts?

    Thanks for your reply!

  6. #6
    Join Date
    Mar 2011
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    California
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    540

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    Quote Quoting eapls2708
    I'd be surprised if the TX statutory time period for the ripening of prescriptive rights (where someone else gains an ownership or use interest over your property) is as short as 4 years
    I thought prescriptive rights were established by regular use of property by people, not structures or animals.

    consult an attorney before removing the fence.
    That's always a safe, expensive option.

    Generally, if you give proper notice (defined by verifiable delivery method and allowance for reasonable time for other party to respond)
    Generally, proper notice does not require verifiable delivery method. In most states, simply having a third party send the notice by first class mail to the address of record (taken, for example, from the latest address associated with the grant deed) constitutes proper notice.

    There are also responsibilities with regard to preserving the materials.
    Why do you think a property owner has any obligation to preserve materials left on his land?

    If there is livestock, domestic pets, or children being contained for their own safety by the fence, you may also, if you chose to remove the fence from your property, be required to rebuild it in the proper location or otherwise provide for the continued containment of whatever the fence is keeping in.
    Why do you think that?

    Your recourse at that point would be to sue for recompense of your expenses incurred to remove the fence.
    I do not see why the owner would be directly able to do that.

    However, the owner can sue the trespasser (e.g., a person who caused something of theirs to be left on the owner's land), and the cost of removing the fence would be a compelling determination of minimum damages.

    Wait for the executrix's response before you lose sleep over this.
    I disagree. I suggest deciding on how long you want to give the executrix to respond. For example, mark 60 days after notice on your calendar as a time to start contemplating other actions, such as tearing down the fence.

    In general, if someone puts a fence on your property after being told that it is their property, that is not an excuse for their trespass.

  7. #7
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    OK. Now I'm confused. In your 1st post you said "the fence was over my property line a yard for about 500 ft." I read that to mean that for a length of about 500 feet, the fence was about 3 feet (a yard) onto your property. In your last post, you said "The property boundary I shared with the relative was to the west several acres, across a major perennial stream and a few more acres. The fence erected was between the cattle owner property owner and I. " That seems like you are telling me that the fence is perhaps several hundred feet from the property line.

    Here is another basic issue: If the fence was put up simply for the purpose of containing livestock and not intended to mark a property line, it is what's called a "fence of convenience" as opposed to a boundary fence. If it can be shown that it was never intended to mark the boundary, then no future claim of ownership to the fence can be made by your cousin.

    The responsibilities of removing a fence can be fairly simple or they can be complicated. If it's the neighbor's fence but on your property and you want it removed, the neighbor has the responsibility to do so. that goes for old fence materials as well. If you decide to remove the fence because the neighbor refuses to do so, or for any other reason, knowing that the fence belongs to your neighbor, you take on certain responsibilities as I outlined in my previous post. Your neighbor is still ultimately responsible to reimburse you. But as long as you have other options, your neighbor is not forcing you to remove the fence yourself. It may be that none of those other options are good options, but they do exist.

    You may choose to not move the fence and wait for your neighbor to remove it. Not effective, but it is an option for you. You may choose to take your neighbor to court in a suit for ejectment, wherein the court orders them to remove the fence. Unfortunately this can be expensive and the court does not normally provide a means to immediately enforce its order. If your neighbor refuses to obey the order, it's back to court to ask the court to provide for the order to be enforced. Court is an expensive option and one that will practically ensure that neighborly relations will never exist between the parties. You may choose to build your own fence on or near the property line, cutting the neighbor off from her fence and the land between the fences. That may not be a bad option. You effectively reclaim your land, provide for the continued enclosure of the livestock, and prompt the neighbor to retrieve their fence materials.

    Removing their fence is just one of a few options you have. Whichever option you choose has responsibilities associated with it. Choosing unwisely, or acting unwisely in pursiong an option will shift a greater responsibility to you. My prior advice was simply for you to make sure that if you do remove the fence, that you consider all possible responsibilities that you may take on by that action. See an attorney to determine just what they are.

    You have now thrown in to the mix that the fence that is there now replaced an older fence. That may put things in a different light.

    The next things I or anyone else who can consider this problem need to know are these:

    1. Precisely where the fence is relative to your property line.

    2. Did the existing fence replace an older fence, and if so, how long was the older fence in place?

    3. Does there seem to have been any intent to place the fence to mark the property line?

    4. Do you hope for a peaceful resolution with your cousin or are you gearing up for a fight?

  8. #8
    Join Date
    Mar 2011
    Location
    California
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    540

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    Quote Quoting eapls2708
    If it can be shown that it was never intended to mark the boundary, then no future claim of ownership to the fence can be made by your cousin.
    eapls2708, you imply that if the fence was intended to be a boundary fence, then that can enforce a claim of ownership to the property. Why do you think that? Certainly not under a claim of prescriptive rights, which requires regular use of the property by people.

    If you decide to remove the fence because the neighbor refuses to do so, or for any other reason, knowing that the fence belongs to your neighbor, you take on certain responsibilities as I outlined in my previous post.
    I repeat, eapls2708: Why do you think that? What theory of law imposes a responsibility on a landowner for removing items from their property, absent a claim under prescriptive rights, or exposing an attractive hazard?

  9. #9
    Join Date
    Apr 2011
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    6

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    Thank you very much for your reply. I apologize for the confusion. It's a difficult story to convey regarding the different properties and how the fence fits into that. Here's a second attempt.
    I own 5+ acres of pasture land. Along the west side there is a boundary fence separating the two adjoining properties. On the east side, there is no boundary fence or any type of fence and animals freely roam from my relative's land across a large creek that runs north-south (on my property), which frequently floods, and onto my land.

    On the west, my property adjoins a property whose owner has cattle. There used to be an old barbed wire fence (built by my father) that formed a boundary between mine and his land and followed the property line for its entire length. This fence was knocked down and replaced by my cousin with one that was over the property line on my side by at least a yard for a distance of about 500 ft. The reason for the rebuilt fence was because the cattle owner's animals were breaking through the old fence, wandering over my property and onto my deceased relative's land.

    On the east, my property shares a boundary with my deceased relative's land. The land that adjoins my deceased relative's is actually a tract that is shared equally by my siblings and is on the opposite side the creek which forms the boundary between the shared sibling tract of land and my pastureland.

    1. The fence constructed without any legal right to do so by my cousin (because the fence in question forms a boundary between my property and a cattle owner and does not adjoin or form a border on my deceased relative's land) is a boundary fence that follows my property line for about half of its length but veers off the boundary property line for about a yard for the remaining distance.
    2. Yes. The older fence was in place for as long as I've been living...30+ years. It was built or rebuilt by my father (whose land was later sold to the cattle owner) and at that time the fence was built his property adjoined his father's (which is the property I inherited from my grandfather).
    3.No, I don't think so. The original fence was the property line.
    4. I hope for a peaceful resolution, but I'm also a realist. The executrix out of 7 cousins didn't end up with 80% of the estate of my grandparents which later became my uncle's for nothing. I would prefer that she personally would have to remedy the situation since she was the one responsible for erecting the fence to begin with, but she will claim she was acting under her POA and was ignorant to the fact that the fence was not on my relative's property and will not be liable. The cost will be born by the estate which diminishes its value for everyone. The other issue I've raised is that her animals must come off my property. To keep animals on my relative's property a new fence will need to be built. That cost in my opinion should be paid by her...who wants to keep animals. Is that accurate? I want to plant trees and they don't roam.

    My apologies for the long reply. It's a complex situation and I appreciate the consideration and input.

  10. #10
    Join Date
    Oct 2007
    Location
    Ohio
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    2,583

    Default Re: Fence Built by Non-Property Owner Without My Permission Over My Property Line

    Here is another basic issue: If the fence was put up simply for the purpose of containing livestock and not intended to mark a property line, it is what's called a "fence of convenience" as opposed to a boundary fence. If it can be shown that it was never intended to mark the boundary, then no future claim of ownership to the fence can be made by your cousin.
    I think that this is a good point from eapls. It may be the central item here. Sometimes a fence is just a fence. Particularly a stock fence in Texas. I can't answer that definitively, of course, but you might get a local surveyor to look this situation over. It may be that the fence was for stock control only and never intended to be a boundary fence. Some clues would be that it is not straight but wanders from point to point as convenience might have dictated, and the posts are just adequate to hold a few strands of barbed wire but don't look too substantial otherwise.

    I want to plant trees and they don't roam.
    It's apparent that your intended use of the property would be at odds with a random stock fence. As there is already an executrix with a lawyer in place you are probably looking at lawyering up yourself if negotiation continues to fail. Texas has it's own unique fence and adverse possession laws.

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