Fencing/Land - Adverse Possession - who owns the land?

[jawillow]

What is the name of your state (only U.S. law)? Texas

Issue:
Pre-existing chain link fence that follows the property line for a certain length then juts over onto my property 22". Neighbor has owned her property since 2000 and I purchased in 2009. I had a survey that clearly shows that the fence does not follow the property line. Neighbor has openly maintained planted vines/plants right up to the chain-link fence and is claiming that my property is hers. The plants are over 3' in height and vines are intwinned in the fence, making some cutting necessary to remove the fence. She called police when I tried to tear down the fence that was 22" over into my property claiming a "grandfather law."

Questions - Who owns the land?

I have owned the property 1 year, she has owned her property 10 years - can she claim adverse possession?

Can she file a "quiet title" and I not know about it?

Should I proceed to tear down the fence that is clearly on my property, trim the plants to the required height and post no-treaspassing signs to block her claim to adverse possession?

 

[Mass_Shyster]

What is the name of your state (only U.S. law)? Texas

Issue:
Pre-existing chain link fence that follows the property line for a certain length then juts over onto my property 22". Neighbor has owned her property since 2000 and I purchased in 2009. I had a survey that clearly shows that the fence does not follow the property line. Neighbor has openly maintained planted vines/plants right up to the chain-link fence and is claiming that my property is hers. The plants are over 3' in height and vines are intwinned in the fence, making some cutting necessary to remove the fence. She called police when I tried to tear down the fence that was 22" over into my property claiming a "grandfather law."

Questions - Who owns the land?

I have owned the property 1 year, she has owned her property 10 years - can she claim adverse possession?

Can she file a "quiet title" and I not know about it?

Should I proceed to tear down the fence that is clearly on my property, trim the plants to the required height and post no-treaspassing signs to block her claim to adverse possession?

You should contact an attorney immediately. It appears the time period for adverse possession "with cultivation" is ten years.

 

[justalayman]

purchased in 2000. 10 years does not accrue until the anniversary date this year.

contact an attorney now and if you cannot meet until after the anniversary date of her purchase, and it has not passed, send a certified letter demanding she remove her plants from your property and to not trespass upon your land.

curious as to what the police said.

 

[jawillow]

Adverse Possession

Police do not handle these situations, they can only make sure there it is not a physically hostile situation :]

Thank you for the advice, but why can't I go ahead and remove the fence that is 22" into my property without contacting a lawyer? Her Deed of Trust is 09/07/2000.

 

[drewguy]

Because if you are wrong and she has successfully adversely possessed your land you will be liable for damages and must restore the fence.

Two other thoughts:

1) Have you contacted your title insurance? Title insurance typically covers claims for adverse possession and they may provide a lawyer to litigate the matter on your behalf.

2) What about giving the neighbor temporary permission to use the land, pending resolution? Wouldn't that break the "chain" of continuity--A.p. usually has to be open, notorious, hostile, and continuous. If you give permission, it's no longer hostile.

 

[justalayman]

you can and if the neighbor believes they have a right of possession, they can also file a suit and include the removal of the plants as damages. If stevef missed something that would give the neighbor a valid claim of AP, you could be liable for those damages.

If your survey and timeline is correct, she would lose a challenge to the right of possession.

I have not read the statutes concerning adverse possession and only based my responses on stevef's post.

a local attorney would still be the best advice you can get to be sure you are not taking any action that would cause you problems. A couple dollars now could help you save a couple thousand in the future.

 

[justalayman]

2) What about giving the neighbor temporary permission to use the land, pending resolution? Wouldn't that break the "chain" of continuity--A.p. usually has to be open, notorious, hostile, and continuous. If you give permission, it's no longer hostile.

that is why I suggested the demand to relinquish the property in a previous post. Even if she did not actually relinquish the property, the demand would be the action required to stop the accrual of time.

 

[jawillow]

Response

Thank you! I have torn down part of the fence, but not the part where the vines/plants are the thickest.

...temporary permission to use the land, pending resolution? Wouldn't that break the "chain" of continuity....
I have been researching this but have not found that granting temporary permission would break the chain/track of continuity.

I have contacted my Title Insurance Company. So far no response, but it has not been a week, I am sending inquires through the proper channels. At first they said they did not handle this sort of situation, I reminded them that I purchased a survey/title insurance for a reason.

I was hoping to settle this without a lawyer as I have spent the last year and my savings doing a total gut and remodel to the house, but it may be necessary if I want clear title to the property. I thought that since the previous owner and myself have paid the taxes on the property in question that it would not be an issue, but this is not the case. Go figure.

 

[VictorD]

I found myself in a similar situation several years ago. There are several points that you have to look at. You put one of them in the subject line for this thread.

"Who owns the land?" Right now, you do. You have the survey and you pay the taxes. But if you and your neighbor go to court, the court might rule that your neighbor owns the land. If you don't file a lawsuit, then the only way that your neighbor can gain title to the land is by filing a lawsuit against you. So one hypthetical question for you is,

"If it goes to court, who would win?" Of course, you really need to consult a lawyer to get a better fix on this question. You won't be able to get a definitive answer, though. On any given day, in any given courtroom, with any given judge, any ruling is possible. The best you'll be able to get is a probability. You have received some feedback on this question already, but there are still some missing facts. When was the fence installed? Was it already there when your neighbor bought her property? How long have the plantings been there? Is it more or less than ten years? Texas allows "tacking", so if adverse use existed before 2000, then if your neighbor goes to court, she can "tack on" the use of the land by her predecessors in title (the people who owned her property before she bought it). But this brings up another question:

"If you force the issue, will your neighbor file a lawsuit against you?" No one in this forum can answer that, nor can any lawyer that you consult. But this is a key question for your strategy.

In my case, I went to the neighbors and told them that they had to stop using my land. At first they agreed, though they asked if they could have a little time to get the money together to build a new fence. Later, they changed their minds and told me that they felt that they had the right to use my land because the fence had been there for such a long time. So I took down the fence. I didn't think they had enough money to hire lawyers to actually file a lawsuit, but they did. That started a couple years of litigation. Eventually, a judge dismissed their case. But if you ask me who won the case, I'd have to say, "The Lawyers!". They're the ones who went home with all the money.

So my advice is to find out all you can about the legal aspects of your particular situation. But also, to consider it from a practical point of view. Do you want to be fighting this for the next few years? Is there another way out?

 

[JustAPal00]

I found myself in a similar situation several years ago. There are several points that you have to look at. You put one of them in the subject line for this thread.

"Who owns the land?" Right now, you do. You have the survey and you pay the taxes. But if you and your neighbor go to court, the court might rule that your neighbor owns the land. If you don't file a lawsuit, then the only way that your neighbor can gain title to the land is by filing a lawsuit against you. So one hypthetical question for you is,

"If it goes to court, who would win?" Of course, you really need to consult a lawyer to get a better fix on this question. You won't be able to get a definitive answer, though. On any given day, in any given courtroom, with any given judge, any ruling is possible. The best you'll be able to get is a probability. You have received some feedback on this question already, but there are still some missing facts. When was the fence installed? Was it already there when your neighbor bought her property? How long have the plantings been there? Is it more or less than ten years? Texas allows "tacking", so if adverse use existed before 2000, then if your neighbor goes to court, she can "tack on" the use of the land by her predecessors in title (the people who owned her property before she bought it). But this brings up another question:

"If you force the issue, will your neighbor file a lawsuit against you?" No one in this forum can answer that, nor can any lawyer that you consult. But this is a key question for your strategy.

In my case, I went to the neighbors and told them that they had to stop using my land. At first they agreed, though they asked if they could have a little time to get the money together to build a new fence. Later, they changed their minds and told me that they felt that they had the right to use my land because the fence had been there for such a long time. So I took down the fence. I didn't think they had enough money to hire lawyers to actually file a lawsuit, but they did. That started a couple years of litigation. Eventually, a judge dismissed their case. But if you ask me who won the case, I'd have to say, "The Lawyers!". They're the ones who went home with all the money.

So my advice is to find out all you can about the legal aspects of your particular situation. But also, to consider it from a practical point of view. Do you want to be fighting this for the next few years? Is there another way out?

Good post Victor!

 

[jawillow]

Response to Victor's post

Your response is a good one - here is my response

The chain-link fence has been up longer than either of us has owned our property. I do not know how long the plants have been there and would think that would get into a case of "she said, she said." unless my neighbor has kept receipts for several years and/or taken photos in 2000 showing existing plants. I would not pursue this except that I want to properly fence the land in dispute and make a private enclosed terrace. The existing fence makes the space too narrow to use for such a purpose and there is no other location possible.

Until she can file a claim in August 2010 the land is legally mine. Research has indicated conflicting approaches to this situation and 3 possible approaches:

1. Break the process of adverse possession before her anniversary date of 9/2010 when she can legally file a claim by sending her a certified letter granding written permission ....
Agreement Grating Permission to Use Property
I, homeowner, located at 2114 Streetname, Austin, TX, give my permission to Trespassor, Darla J. Lastname, to plant and tend plants located on a Thrity Five-foot strip of my property bordering the west of the legal property line. I reserve the right to revoke this permission at any time. ... and so forth

Question: If she signs this agreement that can I exercise my rights to "evoke this permission at any time" and then proceed to step 2 listed below?

2. Tear down the remainder of the fence and build a fence that is 3" from the proper property line. She could take me to court but would not have a strong case as the easement/adverse possesion time-lengh is no longer valid.

3. Continue to pursue actions already taken Recap: I sent her an Email last Novemer stating my intent to reclaim my land as defined in the survey, tear down the existing fence and build a new one that is more compliant to the property line. She did not consent to my request but elected to continue "hostile intent" by not removing the plants on her side of the fence and putting horse trough planters along the fence line a week ago. I then tore down a section of the chain-link fence resulting in her declaring what I was doing was illegal, etc. I could follow skip steps 1 & 2 but it seems that I might be liable for damages if she takes the case to court and wins.

Bottom line: I don't like hostile neighbors or the thought of an expensive court fight, but I don't want to pay taxes on land I am prohibted from using and give up my plans for a terrace.

 

[justalayman]

you are making one mistake in all of your scenarios:

she only has to file a claim of possession within the applicable statute of limitations. I am not positive of what the specific time limit is in Texas but would not be surprised to learn it to be a couple years. I would imagine it is at least 1 year. If her claim had already ripened, it would still be a valid claim as long as she filed suit within that time limit. Her right to sue is not extinguished instantly upon your possession of the land. That merely stops the accrual of time counted towards an AP claim.

Depending on what happens on the land, there could be some reasonable arguments to not allow the statute of limitations to control her time for filing suit though.

so, I bet that puts a hitch in your britches.


You said something about horse troughs planters; made me think.

Doe she have any animals that this fence is used to contain?

 

[154NH773]

I have a question based on your statement:

I purchased in 2009. I had a survey that clearly shows that the fence does not follow the property line. Neighbor has openly maintained planted vines/plants right up to the chain-link fence and is claiming that my property is hers.

What did the former owner of your property say about the situation when you were purchasing the property? How long did he own the property? Did he give permissive use to the neighbor, and would he testify or provide an affidavit to that effect?

On any given day, in any given courtroom, with any given judge, any ruling is possible.

This probably the truest advice you will get on this forum.

 

[jawillow]

The former owner, Lili, lived there approximately 30 years and died during the purchasing process. I never met her, but am on good terms with her legal guardian. My neighbor is not on good terms because the guardian feels like she took advantage of Lili as she was ederly and senile. Me neighbor says that she and Lili "had an agreement" but can not produce anything in writing.

There are no horses, the horse troughs are to be used as planters.

I believe that it is 10 years in Texas and so far I have not been served any papers and she has not been able to produce evidence of ownership. I do not believe she had a survey when she bought her property, I have showed her mine that clearly shows that part of the fence does not follow the property line.