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  1. #1
    Join Date
    Aug 2011
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    3

    Default Fence Has Been Boundry for 11 Years

    My question involves real estate located in the State of: Texas. We purchased the residence in 2004. Our neighbor built the fence in 2001 between our properties and he was aware the he had placed it a foot to foot and a half into his property. The fence lacks thirty feet to reach the front and has been honored as the dividing line for our properties even with other owners. Our survey indicates that the rear of the property is off by one foot to my advantage and then continues in a straight line. The neighbors residence was recently foreclosed and the new neighbors want to move the fence in order to claim the property back. The original owner removed the fence when he left six years ago leaving the fence posts only. I had to replace the fence for I have dogs running lose on our property. The property was purchased and I advised the new owner about the adverse possession due to his renters wanting to purchase the property and wanted to move the fence prior to purchase. He sold the property and the new neighbors are insistent that they own the fence and want to move it to the survey markers. My wife , who is the registered owner on the deed had to call the police this past weekend due to the neighbors again trying to mark their property in relation to the property survey and a their action to install the missing fence and move existing one. We advised the officer about the fence being in existence for over ten years. That it has been honored as the property line for said years. The officer advised the neighbors but i wish to know what course of action is needed to halt ANY FURTHER ATTEMPTS. the seller was aware of the adverse possession for I ADVISED HIM. He further explained to me that he had advised them (new neighbors) at the time that he would refund them their three months rent if this was going to be a problem. They bought it and now to them and now all i here from them is that the mental property markers is the boundry. I am and was aware of this but they can not accept the fact the there are other laws that over ride this by adverse possession which I claim and the person who sold it to them failed to notify them off in order to make a quick sale. What should/can we do at this point.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,571

    Default Re: Fence Has Been Boundry for 11 Years

    It sounds as if the placement of the fence was known by both parties to be off of the deeded line when it was placed. If so, that could make your use of the foot or so between the property line and the fence permissive. Permissive use defeats adverse possession. The act of mowing the strip, in itself, does not meet all of the requirements of Texas AP law. Sometimes a fence is just a fence.

    Your claim of the strip is just a claim of title and does not constitute ownership until you go to court (not small claims) at your own expense and prove to the court that you have met all of the requirements of the law. If you should win, the court will award title to you and you will be required to get a new survey, at your expense, which will describe the area awarded. As it is not a do-it-yourself project, you will need an attorney to handle this for you and that should be your next step.

    You might want to read this:

    http://recenter.tamu.edu/pdf/1152.pdf

  3. #3
    Join Date
    Aug 2011
    Posts
    3

    Default Re: Fence Has Been Boundry for 11 Years

    I had placed the posts extending the fence as indicated on our survey prior to their purchase to identify the property line as it had been acknowledge. The new property owner had the property surveyed to sell it to his renters and it was at this time that he requested I remove them for they were on his property. It was at this time I advised me I had adverse possession of the property due to the fact that it had been acknowledge by all previous owners without challenge. He to did not challenge my verbal claim to him. The new owners defense is I bought this property marked by property metal stakes imbedded in the ground. Our property servey does not match the incomplete survey provided to us by seller. According to ours we have been paying taxes to what they now claim. Will a letter from attorney notfying them officially of my claim under adverse possession suffice to prevent any further action on their behalf till they acquire legal counsel to advise them of the texas real estates laws which they should have sought at time of purchase to which seller did not advise them or corrected prior to purchase. I have sought legal counsel and have been advised that the fence has met the statue of limitations and has established the boundry even in the area without fence for adverse possession. I am seeking the most cost efficient resolution. Are they required to seek legal remediation having been verbally notified by a peace officer and at whose expense?

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,571

    Default Re: Fence Has Been Boundry for 11 Years

    You can certainly get your attorney to write a letter stating your claim.

    The neighbors may just decide to roll over and agree to your claim. There will still be a matter of several thousand dollars for all of the legal work and the new survey, which you would be expected to pay as the claimant. Going after the neighbors for costs might add insult to injury, and change their mind's about cooperating.

    Since the neighbor was allowed to remove his fence apparently with complete acquiescence six years ago (removal of the entire fence except for the posts could be seen as effectively removing the function as a fence) that would reset the AP clock to zero and it would not have restarted until you added your own materials to reconstitute it as a fence. So it has been in place continuously as a fence for maybe six years. Your placement using the existing posts in order to, as you say, restrain your animals, could be seen as constituting the fence as a convenience fence under Texas law (refer to the link I provided earlier). Your neighbors can just as easily have their attorney send you "official notice" that you are a trespasser and to get off their property. At that point you are basically done or headed to court. I think that you already know their opinion in the matter.

    The attitude or opinion of a peace officer is of absolutely no consequence in determining property boundaries.

    You will have to go to court and prove your claim in every respect required by law if the neighbors do not roll over. How long is this boundary you claim? If it's say, 300 feet and a foot to a foot and a half wide you are claiming about 1/100th of an acre. You will face several thousand dollars in costs even if you win. If it costs you $5000 (could be a lot more; I have no idea) you are paying the equivalent of one half million dollars per acre.

  5. #5
    Join Date
    Aug 2011
    Posts
    3

    Exclamation Re: Fence Has Been Boundry for 11 Years

    The advice i have received from a local real estate lawyer is that I have control all the way to front of property due to time of fence installation establishing the property line to include the area in a straight line forward as if I had extended the fence as intended and as reflected on or original and recorded survey with county. I/we have been paying taxes for this according to our registered survey with the county and seller knowing and willingly sold the property to them with out making arrangements to resolve this matter with the new purchaser of the property. Who is responsible to provide the burden of proof via all state laws and statutes of the state of Texas in this matter besides my neighbor stating " well I bought this property and it starts at this property marker" knowing very well that the boundary line was in question.

    Real estate selling in the state of Texas require that issues such as this be addressed at time of selling and seller has to make appropriate arrangements with purchaser in regards to adverse possession of which he is aware of to deter situations as the one at hand

  6. #6
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,571

    Default Re: Fence Has Been Boundry for 11 Years

    Who is responsible to provide the burden of proof via all state laws and statutes of the state of Texas in this matter
    As I have already stated, the claimant (you) is that person.

    As you have an attorney get advice as to how you are to get written title for your claim. Without written title, you cannot transfer it and you are a potential trespasser until you get written title. Nothing more can be done here. Go back to your attorney and move forward with your case.

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