Adverse Possession

[shick33]

What is the name of your state? Texas

My Mother has owned her home for 40 plus years and has landscaped her yard with flowers and trees. Recently the lots in front of her house was purchased and the new land owners survey indicates that a portion of her yard is really his property. He wants to dig up her flowers and trees and put up a fence. Can she stop this using adverse possession? When she and my Dad bought the property there was an old fence that they used to determine the property lines. Never had a survey done.

Thanks!

 

[SnowCajun]

My Mother has owned her home for 40 plus years and has landscaped her yard with flowers and trees. Recently the lots in front of her house was purchased and the new land owners survey indicates that a portion of her yard is really his property. He wants to dig up her flowers and trees and put up a fence. Can she stop this using adverse possession? When she and my Dad bought the property there was an old fence that they used to determine the property lines. Never had a survey done.

Just curious here, but if it's these other folks land why would your mom want to try and take it from them? To me "adverse possession" sounds like a fancied up name for "squatters rights!" She's had 40 years enjoyment of her flowers and landscape incorrectly planted on someone elses property, now that these new neighbors have legally purchased their land and want to use it as they please. Wouldn't you if you'd purchased your own new property like that?

I know I'm not answering your "adverse possession" question, I'm only offering my moral view on the whole situation, but it's not the new neighbors fault that your mom didn't have a survey done when they moved in 40 years ago and incorrectly assumed and old fence was the property line!

I guess I can't see how anyone would think that would give them the right to try and possess someone elses paid for property just because they've been there 40 years and were using it when it even when it's never really been theirs to use in the first place. I know your mom must love her flowers and landscaping, and I'm not trying to be hard on her with my thoughts and opinions here, but the land isn't hers, so why not be a good neigbor instead of making enemies out of these new folks?

I think trying to take possession of their land in any form or fashion will only cause unrepairable damage to any kind of relationship between your mom and these new neighbors, and I know if my mother was still alive and had lived in the same place for 40 years that I'd want good neighbors watching out for her as she gets older in life and I wasn't able to be around for her all the time. Close and friendly neighbors can be a valuable asset, much more so than a few flowers and landscaping.

Sorry if my 2 cents wasn't what you were looking for!

SnowCajun

 

[ErinGoBragh]

Two seconds of googling found this:

Ten-Year Statute

The ten-year statute is used more often than any of the others (Section 16.026). The statute bars the owner from filing a lawsuit to recover possession when the property has been held continuously and adversely for ten years by someone who cultivates, uses or enjoys it.

The statute requires no deed for entry and no payment of property taxes. The primary issue is the amount of land the possessor may claim. Different rules apply depending on whether the land was enclosed (fenced) and whether the adverse possessor entered under a recorded deed or memorandum of title.

If the adverse possessor enters without a deed or memorandum of title and the land is not fenced, the possessor may claim no more than 160 acres. If the land is fenced, the adverse possessor may claim all the land under fence if the entire fenced tract is held peaceably and adversely.

Different rules apply when the possessor enters under a recorded (registered) deed or a memorandum of title that contains a legal description of the property. The possessor may claim the entire described tract even though only a part was actually possessed. Possession of part extends the claim to the whole. Fencing plays no role.

Memorandum of title is not defined in the statute. Basically, it is a written document reflecting a transfer of title. A will meets the requirement as does a tax deed issued by the sheriff at a tax sale.

Entry under a forged deed, while excluded under the five-year statute, is recognized under the ten-year statute. Likewise, the ten-year statute recognizes entry under a quitclaim deed while the five-year statute does not.

Rest is here: http://recenter.tamu.edu/Tgrande/vol13-2/1776.html

Code is here: http://tlo2.tlc.state.tx.us/statutes/docs/CP/content/htm/cp.002.00.000016.00.htm

Basically you would have to bring an action on a quiet title- i.e., sue in court.

 

[ErinGoBragh]

By the way, did she have a fence along the portion of the property that she thought was hers? Apparently, this can have an impact.

I don't think what you're mother is trying to do is right, but clearly, she may be able to get the land under Texas code.

 

[iflylow74]

Just curious here, but if it's these other folks land why would your mom want to try and take it from them? To me "adverse possession" sounds like a fancied up name for "squatters rights!" She's had 40 years enjoyment of her flowers and landscape incorrectly planted on someone elses property, now that these new neighbors have legally purchased their land and want to use it as they please. Wouldn't you if you'd purchased your own new property like that?
SnowCajun

Amen to that!! And I definetly agree that this is no way to act towards new neighbors.

Even if you do have an adverse possesion claim, you can bet your mom will have
neighbors who will probably be lifelong enemies if you persue it. If I were you, I would have your mom speak with the neighbors and maybe they will allow her to continue using the piece of property for her flowers and trees as long as she gives up her claim to adverse possesion. I have a similar situation, excepting that I am on the recieving end of a possible adverse possesion claim and I can tell you from that experience I have absolutly no sympathy for someone trying to use the ap law to legally steal property. I can also tell you that if my neighbor had tried to work things out with me, then we wouldn't have to be going to court now and paying tons of legal fees. Just my 2 cents..

 

[shick33]

Thanks for the information. My Mother is really not trying to take anyone's property. The new owners have actually built a huge metal building on the property. Before the construction started we met and agreed that he would put his fence on the the part that she had not been using all these years. We are not talking about a lot but it is in the front of her house. To me he is not being the good neighbor by first agreeing he would let her keep the piece that has her flowers and now has decided no he wants to put up a fence and take all of it. I understand that rightfully it is his property but don't say one thing and then do something else.

 

[Ozark_Sophist]

Thanks for the information. My Mother is really not trying to take anyone's property. The new owners have actually built a huge metal building on the property. Before the construction started we met and agreed that he would put his fence on the the part that she had not been using all these years. We are not talking about a lot but it is in the front of her house. To me he is not being the good neighbor by first agreeing he would let her keep the piece that has her flowers and now has decided no he wants to put up a fence and take all of it. I understand that rightfully it is his property but don't say one thing and then do something else.

It sounds you and/or your mother negotiated a permissive easement/use of the new neighbor's property. Had you actually owned or believed you owned the land through adverse possession, you would not have and should not have asked permission. I would think this 'agreement' negates any argument for adverse possession. Permission easements may be revoked.

 

[SnowCajun]

Thanks for the information. My Mother is really not trying to take anyone's property. The new owners have actually built a huge metal building on the property. Before the construction started we met and agreed that he would put his fence on the the part that she had not been using all these years. We are not talking about a lot but it is in the front of her house. To me he is not being the good neighbor by first agreeing he would let her keep the piece that has her flowers and now has decided no he wants to put up a fence and take all of it. I understand that rightfully it is his property but don't say one thing and then do something else.

We understand your mothers frustration, she's invested a lot of time and effort over the years enjoying the fruits of her labor, if I were able to give her all the land she wanted I would. When you mentioned adverse possession you were in fact talking of taking someone's property from them, or at least suggesting that was your idea, that's where we got the opinion that was what you were after.

I can imagine your mother probably isn't pleased having to look at a huge metal building either, but the fact is whether he wanted a metal building, a birdbath, or even a mansion, it's his property to use as he pleases. Obviously he thought he could get away letting your mom use part of it, but then I guess realized he wouldn't be able to after all.

I wish you and your mom the best of luck with this, I can sense the frustration in your words.

SnowCajun