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  1. #1
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    Default Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

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

    My neighbor came to me in 2006, informing me that he had likely harvested some of my timber due to a very old fence being improperly place. He expressed his unease at asking that I permit him to erect a new fence in the same place since our plats disagreed slightly. I stated that I was not inclined to pay for a survey to determine the proper fence location but when a survey would be done in the future, I would expect him to move the fence to the correct location. After clearing the land and before the fence was erected, I pointed out to him that the property line was a straight line, and that the old fence cut off at a angle about 4/5 of the fence length. If he would simply continue the fence along the original course, he would be very close to where we both suspected the fence should be. He ignored this and is now claiming adverse possession. He had a survey in 1998 and he does not deny placing the new fence outside of the boundaries in that survey.

    Do I have a case to retain the property?

  2. #2
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    Quote Quoting shrek
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    He ignored this and is now claiming adverse possession.
    Meaning you have now been sued for adverse possession? Or meaning he has used that phrase when talking to you, but nothing has happened in court?

    Do you have a survey of your own? Does he agree that the 1998 survey is accurate and, if so, do you also agree with that survey?

  3. #3
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    How much land are we talking about here?

  4. #4
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    He suggests I save my money and allow the fence to remain where it is, or we split the cost of a new survey and moving the fence or he will claim adverse possession since the fence, according to him, has been there since the 50's. My mortgage company accepted a survey that was several years old when I purchased 13 years ago. While I have not seen his survery, he showed me approximately where the fence should be. I guess we are talking about a half acre or less. He said our plats differ slightly, his is shows his fence to be further out of bounds than mine, but both his survey and mine agree the new fence is in part out of his boundaries. He simply deviates from what I assume is the actual property line 300 or 400 feet out and cuts into my property about 100 feet at the end point forming an obtuse triangle of land in question. This land was heavily wooded, and until he harvested several years ago, the change in direction was not noticeable.

    Does my title policy offer any protection here?

    - - - Updated - - -

    I am not at all certain but I guess about a half acre. It is still heavily wooded.

  5. #5
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    Oct 2007
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    Sometimes a fence is just a fence, particularly in Texas.

    The fact that it does not run in a straight line, when the deed indicates a straight line, indicates a convenience fence, maybe placed to keep in stock, rather than to indicate the actual property line.

    Do I have a case to retain the property?
    The actual question is: does the neighbor have a case to take it?

    He can't just go over to the court house, sign a paper or two, and take it by adverse possession. In an AP case, the claimant has the entire burden of proof. He is going to have to sue you in county court (not small claims!) for about half an acre of wooded land. If the land is worth say $50,000 per acre and his lawyer thinks he has a good case, he might go forward with it. He might win or he might lose. If the land is worth maybe $10,000 per acre or less it's unlikely you will be hearing from a court about an AP claim anytime soon (unless this is just out of spite). The neighbor may continue to bluster about it. But he has tipped his hand. I wouldn't hesitate to spend the money to have a local attorney put in a couple of hours or so on looking into this and advising you where you stand and if anything should be done at this time.

  6. #6
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    It would be worth talking to an attorney, since he freely admits he is not complying with his own survey.

  7. #7
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    Quote Quoting shrek
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    Does my title policy offer any protection here?
    Probably not. Check the jacket of your policy. Enhanced title policy is what you want. And what most people do not have. Title insurance is quite the racket.

  8. #8
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    Quote Quoting shrek
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    He suggests I save my money and allow the fence to remain where it is, or we split the cost of a new survey and moving the fence or he will claim adverse possession since the fence, according to him, has been there since the 50's.
    And... you don't want to pay anything toward a survey or relocating the fence?

    Perhaps, then, a counter-offer built off of option (a) - you give him permission to keep the fence in its present location until he either sells the property or it needs to be replaced, and in return he agrees that the fence is not on the property line and any of your property on his side of the fence remains yours, free and clear of any claim by him beyond permissive use. (Agreement to be reduced to writing, signed and dated by both parties.)

  9. #9
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    Feb 2013
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    Default Re: Neighbor Claims Adverse Possession Based Upon Improperly Placed Fence

    The fact that he knowingly placed the fence outside of his survey's boundaries makes me very reluctant to pay for anything. Before the fence was put up, I told him that I would expect the fence to be moved when we determined the proper placement, and he agreed. He did not tell me then that he had a survey.

    It has been recommended that I file a "trespass" document but do not know how or even where to do that yet.

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