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  1. #1
    Join Date
    Nov 2009
    Location
    texas
    Posts
    1

    Default Adverse Possession and Back Taxes

    My question involves real estate located in the State of: Texas
    The neighboring property of my residence has been tied up in back taxes etc. for many many years. I have a fence which extends on to this property approx. 10ft and which is visible to passing public and is always kept locked and has been in place well over 15yrs. The property recently went up for auction and was purchased. The new property owner came to my residence with a copy of the lot descriptions which he aquired from the courthouse and attempted to point out that my fence was on his property. I didnt refuse to move the fence but I didnt agree to it either.....I want to find out what rights I have...I have cared for and kept the lot which he purchased cut and clean for 15+ yrs. Im not interested in any claims to that portion of land but the portion which my fence is on. what would be the smart cheap move to make in this case and do i have any rights???? .....also this property is located within a designated flood plain if that has any relevance

    Thanks

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Adverse Possession and Back Taxes

    As your new neighbor has visited you and asserted his rights to the property, you need to abide by that or begin the process to claim the property.

    It will involve hiring an attorney and proceeding with a lawsuit to obtain title to the property. The adverse possession laws of Texas are perhaps as extensive and convoluted as any state. You can google them and see what you are up against. There is no space to post them all here.

    Whatever the requirements in your specific situation, it will be up to you to prove in court that you have met every requirement of the law. If you cannot prove every requirement, your case will fail.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Adverse Possession and Back Taxes

    Also consider the related doctrine of acquiescence to the fence as a boundary line. Realistically speaking, if you don't want to remove the fence and can't or won't negotiate to purchase the strip, your remedy will come through a court action - so it makes sense to consult a lawyer.

    Here's how one court summarized the law:
    Quote Quoting Myers v Wright, 224 S.W.3d 466 (Tex App, 5th Dist, 2007)
    Adverse possession means "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." See TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (Vernon 2002). "'Claim of right' . . . means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession." Boyle v. Burk, 749 S.W.2d 264, 266 (Tex. App.-Fort Worth 1988, writ denied); see Tran v. Macha, 213 S.W.3d 913, 50 Tex. Sup. Ct. J. 186, 187, 2006 Tex. LEXIS 1189, 2006 WL 3456550, at *2 (Tex. 2006) (per curiam) ("[T]here must be an intention to claim property as one's own to the exclusion of all others . . . ."). "[C]oupled with his actual and visible possession and use, the adverse claim and possession satisfy the statutory requirements and cannot be defeated by [the claimant's] lack of knowledge of the deficiency of his record title or by the absence of a realization that there could be other claimants for the land." Calfee, 544 S.W.2d at 642.

    Actual and visible possession can be established by a "designedly enclosed" fence, but not by a casual fence. See Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 288-90, 267 S.W.2d 781, 785-88 (1954); W. Prod. Co. v. Kahanek, 132 Tex. 153, 158, 121 S.W.2d 328, 331 (1938). "Where the fence existed prior to the claimant's possession of the land and the claimant fails to demonstrate the purpose for which the fence was erected, the fence is a casual fence." Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.-Houston [14th Dist.] 1996, no writ). However, a claimant may substantially modify a casual fence and so change its character that the fenced-in area becomes a designed enclosure. Rhodes v. Cahill, 802 S.W.2d 643, 646, 34 Tex. Sup. Ct. J. 33 (Tex. 1990); McAllister v. Samuels, 857 S.W.2d 768, 777 (Tex. App.-Houston [14th Dist.] 1993, no writ); Butler v. Hanson, 432 S.W.2d 559, 563-64 (Tex. Civ. App.-El Paso 1968), rev'd on other grounds, 455 S.W.2d 942, 13 Tex. Sup. Ct. J. 380 (Tex. 1970).

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