OT/ adverse possession question

When I bought the property south of Dallas, it was surveyed. The survey showed the neighbor's fence was about 8ft on our side of the property line. We were able to get a document from the neighbors stating the fence line was not the property line. That document was filed at the courthouse with the deed. That was 20 yrs ago.

The surveyors drove rebar into the ground to mark the corners. We cemented around them to make sure they didn't get removed.

Since that time the property has changed hands and a new fence was put up in the same place as the old one (not on the property line). The property is now rent property.

I'm thinking I should have had a talk with the new owner telling them the fence line was not the property line. Now I am concerned that the document regarding the fence line vs. property line is no longer valid due to "adverse possession" even though the document is on record at the courthouse.

Would like the opinions from John T & MWA.

Should have moved the fence twenty years ago to the property line.

I would have the fence removed from "your" property and either re-erected on the line or within your line by an inch or so.

I've been through this 3 times with 3 different neighbors. Obviously laws and situations are completely unique, but a person who has or is in possession of land can attempt to claim via the court system, based on the criteria and the laws in NYS.

In one of the situations I had, the neighbor took down an old existing fence, cleaned and planted grass, during a period of time when I was working out of town. I have the documentation on this parcel and theirs, clearly a judge would not be so inept as to rule in their favor. He was cutting the grass, parking vehicles and I was nice to them about allowing some use, which they totally exploited, they were told to cease entering the land, a year later they started again, it was close to the 10 year mark, for adverse possession. I went down there, it resulted in a confrontation, the law and so on. In 3 days, I had a surveyor re-establish the line, and a fence erected, that was that, should have done it years back.

Whatever criteria qualifies a claim of adverse possession in texas, make sure to violate it, so no claim can be made, and I would absolutely get that fence relocated.

Adverse possession is state law and varies somewhat from state to state.

That said, IF your document properly defines the property line and IF it was properly recorded it will provide persuasive evidence of your claim and MAY persuade the new neighbor to move or remove the fence.

If the new neighbor refuses to move or remove the fence, it will lkely take a suit to quiet title to settle the affair.

Adverse possession is a legal principle that can sometimes result in ones loss of property rights but not without court action. Otherwise, it will have no effect upon a properly recored legal document.

Dean

My cousin Don had a situation like that. Then a little Shiite (trespassing) on the other side hit the fence with a dirtbike and was injured. YOU guessed it,the lawyers(dirtbags)found out how the land was set-up and since the property technically belonged to my cousin he was sued and LOST!

I had 80 acres of Forrest land in southern OR on every side someone was trying to move in. The land was surveyed just before I bought it I put up fences and told the neighbors to keep off. They squawked some but gave up any claim to the land. Adverse possession here say that you must not know where the line is do to some mistake in an old survey or some such thing. You can't take land that isn't yours just by using it. There has to be some mistake in establishing the line without you or the neighbor knowing about it for a period of time, here that is 20 years.
Walt

The courts and society will view it this way:

You really haven't cares about your strip of property for 20 years, since you haven't used it, you haven't tried to claim it, you haven't maintained it, when you got new neighbors you didn't bother getting the fence in the right place, and so on.

Might as well let the other people have the property, if you are so careless as to not use, care for, or defend your property in all this time.

Don't mean to be harsh, property disputes are always a sore spot, we've had our share too.

But, I kinda agree with the adverse laws in this case - after time, the fence line should become the property line, if nothing is done about it?

Heck, deed it back to the neighbors, anfd move on with life, it appears that 8 feet never has been important to you, why bother now 20 years later...

--->Paul

OK,I would add a question of two to this because I've got a similar situation.
Traditionally,the land owner is responsible for upkeep and maintenance of the right hand half of the fence as they face it from their side of the fence. The neighbor place that borders me to the south sold recently. I put a new 5 strand barbed wire fence in the full length of the property in 2001. Did all the work,payed for all of it. I put the new fence just over on my side of the old fence,but as close to it as I could get through a swamp on the left hand end as I'm facing it. So technically the other guys end of the fence.
It was surveyed last fall and the stake is over on my side of the fence about 2 feet. Is it adverse possession since the old fence had probably been there since the place was homesteaded in 1857? If not,who is responsible for moving it at that end,him or me?

If the document was filed properly it is a strong leg to stand on. I would take a copy with you when you go have your talk. At that point you will know if there was any funny business with the previous owners in terms what the stated line was. The new owner placing the new fence where the old one was may just be an oversight versus an opening volley in a war between the two of you. I would always pursue the possibility of an amicable solution.

I had a course in surveying while in the Army. On paper, surveying is an exact science, in the field it is not. You can have two different surveyors finding "points" in different places, but close by, cuz PEOPLE are doing the measuring of azimuth and distance. I"ve had to deal with three surveyors over the years....and each time found their mistakes. Selling my mother"s house, the surveyor wrote, from xxx point, go 370 feet. (no azimuth) I told him to rewrite the description cuz 370 feet from a point is a......CIRCLE!, not the next point.

Ordinarily, recording the document acknowledging that the fence was not the property line would cover you- it would convert neighbor's use of your land to "permissive", and until you withdrew your permission, the time period for adverse possession would not have begun.

But what bothers me here is that a new fence was built, and was not built on the line. There's a good argument to be made that the construction of the new fence was "adverse" to your interests, in that you could (should) have insisted it be put on the actual property line- so at that time, neighbor began to "adversely possess" your land.

If neighbor rebuilt the fence without your knowledge, it actually bolsters his position, believe it or not- because the basis of the adverse possession doctrine is that a property owner should not "sit on his rights", and not knowing what is going on with the property is indicative of that.

Was the new fence built less than the adverse possession time (10 years in my state) ago? If so, you should be OK, if you now move it to the property line.

The other consideration is, is it be worthwhile to even worry about it? If yours a residential rental with a lot of grass to mow, and no other real need for the 8 feet, you might just consider deeding it to him, at his expense, of course. Not all issues are worth fighting over, but its your call, of course.

My long-distance advice, in a jurisdiction whose laws I'm not familiar with, is to move the fence ASAP. If neighbor objects, show him the document that was recorded, and say you're just moving the fence to correct the situation. Let him start the legal action, if he's so inclined.

He should have been made aware of the recorded document when he bought the property, and if he was not, then he has an action against the title company that wrote the title insurance, for money damages.

There was an existing fence when I bought the property. Original neighbors were very nice and we had no problem with them or any of the other neighbors. The true property line runs about 2 ft from the neighbor house and there is barely enough room for the a/c unit. Since they were aware of the true property line and we got along with the neighbors, we didn"t do anything about the fence.

Never made a fuss because the original neighbors were aware that the fence was not the property line and we got along great.

The document stating the fence line was not the property line was drawn by an attorney and was filed with the county clerk along with the deed when I purchased the property so it should be a strong document.

Okay Nancy you asked, so here are my still professional, although totally unresearched in your state and free opinions, which are therefore, worth just what you paid NOTHING!!!!!!!!!!! Not having researched the commom or codified law of adverse posession in your state and not having reviewed the relevant documents this "opinion" isnt worth much more if any versus a pure lay opinion or hearing what Billy Bob or the know it all brother in law has to say about this lol LAWYERS LOVE DISCLAIMERS WE CANT HELP OURSELVES


1) To start with, and regardless of valid instruments of record (Deeds, Surveys, Neighbor Agreements), by which as a strict matter of law as Dean noted you "should" prevail, ITS ALWAYS A RISK IN MY "PROFESSIONAL OPINION" (perhaps very low with the documentation you reported) TO SIT BY AND LET A NEIGHBOR UTILIZE YOUR LAND AND TREAT AS IF IT WERE HIS OWN...i.e. if he openly in your face uses and mows and treats the fence as the boundary and you allow it !!!

2) The law of "adverse posession" is not so much to reward a squatter as it is to impose an affirmative duty on a landowner to exercise due diligence and NOT sit on his rights for a statutory period (10 to 20 years) and only long after go crying to the Court for relief. IE if someone is making use of and treating your land as his own BRING AN ACTION FOR TRESPASS instead of sitting idle and letting it take place 10 to 20 years, because if you do, he might prevail in an action for adverse posession and that land be judicially declared his. AND THIS CAN HAPPEN even if you have a hundred deeds proving it was your land and where the deeded boundary was. The boundary or deeds or agreements isnt so much the issue, the issue in adverse posession is that you sat on your rights and let another run rough shod over you for 10 or 20 years and didnt do anything SO THE COURTS ARENT GONNA HELP YOU NOW

3) There are a few "end runs" around adverse posession such as the neighbors use cant be adverse IF ITS NOT HOSTILE IE YOU GIVE HIM EXPRESS PERMISSION TO MOW THERE ETC. To prevail in an action for adverse posession (as I recall from law school no warranty) the neighbors use must be Hostile, Open, Continuous, Exclusive, Adverse and Notorious so if its NOT adverse and Notorious the neighbors action should fail. Ive seen people write letters or draft agreements to the effect we realize where the boundary is but Im ALLOWING you its use regardless and those may be !!!! viable legal methods to avoid adverse posession BUT I STILL DONT LIKE NOR RECOMMEND THEM............

4) SOOOOOO I have to agree with Dean the documents you report "should" provide you a good legal defense to protect you AS A STRICT MATTER OF LAW...But none of us here, lay or professional, get to make that call ONLY A COURT

BOTTOM LINE yeah the duly recored documents you reported likely would result in defending you against a claim of adverse posession especially if the neighbors use was NOT adverse as I discussed above...

HOWEVER MY BEST FREE PROFESSIONAL LEGAL ADVICE IS TO JUST MOVE THE FENCE TO AVOID ALLLLLLL THESE ISSUES AND POTENTIAL COSTS AND ALL THE ASSOCIATED RISKS DOWN THE ROAD its gotta be cheaper to move the fence then a lawsuit down the road!!! even if you win (likely would with what you have and you negate the adverse requirement) or loose it. And I still say that regardless how many recorded deeds and agreements you have especially when theres been a change in ownership.

My next to last free advice is DONT GO "TALK" TO THE NEIGHBOR AS YOU MENTIONED. You need to establish and preserve crucial admissible evidence to avoid any he said she said fact disputes down the road. That means certified USPS Mailed letters with return green card receipts. NOTE Im not saying dont neighborly and friendly go discuss and inform and tell him the you think the fence should be moved, Im ONLY saying if things start to get heated or contested, Id prefer to go in Court with admissilbe hard paper trail evidence instead of "well we talked aobut it and he said...." Get my point??? Also look down the road and your having to tell your new buyer wellllllllll our land really goes beyond that fence line BUT ITS STILL OURS AND WE HAVE THESE PIECES OF PAPER TO PROVE IT woooooooooooooooo !!!!!!!!!!!!!

My last free advice IS TO CONSULT LOCAL COMPETENT TRAINED PROFESSIONAL OPINIONS instead of mine or anyone here or Billy Bob or the Brother in Law or the "know it all" types theres just too much at risk to hang your hat on other then professional advice in my "opinion" so like Fox News we report you decide.

Best wishes n God Bless. I always enjoy your comments here

PS I defer to Mike and Dean they may be more current, knowledgeable and experienced then myself IM SEMI RETIRED REMEMBER

John T Country Lawyer

COOL, I didnt read your thoughts until AFTER mine was posted DO GREAT MINDS THINK ALIKE LOL LOL

Co Counsel John T

...and just incase.

http://www.lonestarlandlaw.com/Adverse.html

> Never made a fuss because the original neighbors were aware that the fence was not the property line and we got along great.

That is certainly understandable.

However, here we are?

Where do you want to go with it now, that you didn't want to go with it then?

It's easier to work these things out with neighbors you get along with, than to fight it out with neighbors you don't get along with.

Since you are worried about it now, 20 years later, you must not be getting along with your new neighbors.

Right or wrong, I'm sure it will be a battle.

You are now dealing with 2 entities - a landowner not in the area, and a rentor who lives there. Two times the trouble.

Good luck with it, I certainly understand how you got to where you are, just being a goosd neighbor.

I guess this is an example of how we all need to get our ducks in a row, and get things settled up when & where we can so there are no loose ends to bother us later down the road.

The bothersome part comes when the new fence went up - that is the ticking time bomb, shouldn't have happened.

The landlord probably doesn't much care, just wants to collect the monthly rent checks, so it might not be that difficult to move the fence? Hope so.

--->Paul

Nancy I feel for you but this is an issue caused by procrastination. The old reason being the agreement that you had with a good neighbor that you did not want to affect with a line change. Then the new owner built a new fence and you did not make him put it on the property line. The old agreement MAY still hold to a legal challenge but it very well may not.

I have been on both sides of this issue. I have become a firm believer in the old saying: Good line fences make good neighbors. I have a line fence on every thing I own. Some of it is not farmed but I want the line marked and not argued about. Life is too short for the headache.

I have one case that is similar to your issue. I just quick claimed the small 30 foot x 15 feet over to the neighbor. I did not need it, had never used it and it made his day. I have a good neighbor for the future.

The question I think you really need to ask your self is is: Does the ground have enough value for you to make an issue out of it????? You have owned the ground now for 20 plus year. You have never used it. Will you really miss it if you don't own it any longer???

I have softened on this issue as I have gotten older. The old surveys where made with difficult equipment and different skill levels of operators. So there are mistakes on many deeds. We now have better technology that makes getting land measured much more accurate. So we are in a transition period. Hopefully those future owners will have fewer problems.

Its not an issue right now, just thinking about the future. There"s not enough land involved to make it worthwhile to pursue.

Since there"s a walk through gate in the fence, I do want to either remove it or lock it so there"s no access to my property.

I really enjoy threads like this. You learn more here by accident than other places by design.
Others have asked the question but I wonder about this too: What is the land worth and does their use of it in any way affect you using your land next to it. Sometimes it's just easier and cheaper to give it away if you have no use for it.
I had a property line question about 15 years ago. My neighbor's land abutted mine on two sides. I wanted to get electrical power to my side from a pole that I always assumed was right on the property line. The power Co wouldn't run an underground line unless I got an easement from my neighbor. So I talked to the neighbor and he got a little paranoid about the lines and paid a surveyor to stake the boundaries. I felt my neighbor was encroaching on me by about 10' on one side but I wanted the power so I agreed that we would both sign quit claim deeds and agree to the "new" boundaries. We stayed on good terms.
As it turned out he died a few years later and I bought his property from his heirs and joined it to mine. By joining the two I will someday be able to carve out an extra buildable river lot. I doubt I would have got it if there had been bad feelings as there were several other people who wanted to buy his land from his heirs.

Start building a new fence, even if just a post here and an post there.. to show you have control of the land and know about the line.

Lease them the land for $1 per year. The lease agreement should serve as evidence that they can continue to use the land but have no basis to claim it. You can let it automatically renew until you give notice of termination.

My FIL had a similar situation on some rural undeveloped property he inherited. An old unmaintained fence encroached about 40 feet onto his parcel, as evidenced by documents on record and a new survey. Owners of the adjoining property held their position that the fence constited the property line, by usage if nothing else.

FIL, not a man to anger, hired a dozer to come in and clear a 40-foot swath, removing all signs of a fence. There was nothing left to attest but the courthouse records and survey markers. It worked out for him, but can't say it would for everyone. Also, this property was remote, so a dozer could do its work undetected.

That is a good point to mention here, there is no doubt a court may look at it this way too, while a surveyor is considered a professional, paid to render a service, it does not mean that its final, and I believe the judge's or presiding legal entity's decision is based on what facts are provided, and is congruent with the law.

The thing that gets me where things are clearly defined, is 2 adjoining properties, both described by a deed, map, transactions, conveyance's etc. over the years can be changed by "possessing" as per the law.

In my situation, like Nancy's the line was 2 feet from the home joining our parcel, that home was clearly on a 55'-0" x 200'-0"(I have their deed) lot subdivided in the 1930's, with records clearly showing that at the county. Our documents show a map with monuments, (steel pipe one of which the neighbor removed in an attempt to cloud the waters I am sure) deed and several transactions/conveyances from the home being sold several times since we have been here 47 years. Granted, a blown or miscalculated dimension on the distances of each line could move the line in favor or not in favor of the owner of each, by a small distance, it sure is clear on paper what each parcel is, that's cut and dry, black and white.

In my opinion, its a farce, a mockery of the law and or lack of common decency/respect for someone to possess land they know is not theirs, by virtue of their own documentation, title, deed, map, (and don't forget the bank/mortage company that also agrees, its their money involved) with the intent to steal it by adverse possession. In our case, the delineation of boundaries is clear, documents, photos, people that would testify, and so on. Now the possessor, a flakey (slander I know LOL !) neighbor whom I was very accommodating to, could have made a claim and potentially won, unless I violated the basis of the claim according to NYS laws, which I did, they just became so annoying, gave em an inch, they took 10 miles, in this case 60 feet, it had to end, but had I been absent, its absurd that they could lay claim and own something clearly not theirs, now who pays the taxes on it?, by paper us, but they own it ? Well I assume then they would have to survey and have the documents changed. This is a valuable parcel with state road frontage close to the business area of town.

Well I digress, but those errors in survey, are real, in NYC where I have had plenty of experience with surveyors to determine lot lines and building perimeters etc., calculation errors do exist and even if very minute, and a small tract of land can be determined to have no owner, it could be extremely valuable, because of things like air rights and all the other associated rights, and land privileges you may have. I worked with this outfit on one job (link attached) and it was really interesting to converse with the principal in this firm about that + the old maps and things from the past in NYC history, definitely not an exact science then LOL !
NYC surveyor

John, I once won such a case on summary judgment, by being just a little better prepared than the other guy.

Neither side wanted to budge, so it looked like we were going to an expensive trial. The other lawyer was a reasonable guy, so I called him and said, "Ya know, the survey is what it is, and the dates are what they are- about the only issue of fact is how your client used the disputed property. How about you get an affidavit from him on his use of it, and if we can agree with it, we'll try to do this on summary judgment?" He did, and fell into the trap- the affidavit detailed how he mowed the grass up the to same point every time, religiously, all summer, for the past upteen years. He was careful to recite facts that established all the factors, or so he thought.

What the other guy didn't realize is that there is case law in Washington that says mowing lawn grass isn't sufficient use to support an adverse possession claim- it has to be some productive use, like a garden, cattle grazing, crops, etc.

I did the SJ motion, submitted and agreed to his clients affidavit as proof of the use, and cited the killer case- It was too late for his client to change his story, so I won, and we've laughed about it a few times over the years.

Note that this would not have worked in Nancy's case, because she has a fence involved. A separate doctrine of Mutual Acquiescence to a physical boundary (such as a fence, a road, stream, etc.) says that if both parties treat such a physical feature as the mutual boundary for 10 years, either by word or by action, it becomes the boundary. And mowing up to it would be enough- treating it as the boundary is a different thing than productive use.

Thanks for the story, its fun to talk shop now n then. After all my thinking it out as you saw I also advised her to just move the fence.......

While adverse posession was fun to study, theres not all that much of it litigated around here.

As I recall the common law in our area considers the normal customary use of the land for which its suited (pasture, crops, etc) as grounds for adverse posession, Im unsure if we have that mowing exception you mentioned

John T

Hello Nancy;
A few weeks ago you gave me advice on my back and hip, thanks. I am fine now and I think I had a hip flexor muscle out of place, and it popped back in.

As far as your fence issue....Get an attorney. I have had a driveway issue with a bozo neighbor for years and I should have taken him to court 10 years ago. We dont get along anyway now due to several reasons. Hire an attorney. (really)

I think it's time you set a date for the removal of that fence.... and if billy bob doesn't have it removed by then, one of your tractors will remove the splinters to the property line.

Rod

Look up Kaplan v Rodgers a 1997 case on Adverse Possesion. It's a precedent case on fences built over property lines. Since you have disputed the line in the past and had a surveyer show where the boundary was and your last neighbor knew it was not the boundary line. You need to inform your new neighbor of the fact. The fact you have let this go 20 years go by works against you. In the Kaplan case they used a 10 to 21 year timeline before aquiesance kicks in and you no longer own the property on the other side of the fence. Just my nonlawyer opinion.

clarification

Whats working for you... the surveyed dispute of the fence as property line.

Whats working against you...
The fact you let it go 20 years since you disputed that fence as property line.

Plenty of good discussion here. Comes down to the old adage about good fences making good neighbors to me. My $0.02 is to either move the fence or ask the neighbor if he will foot expenses to quit claim the parcel over to him. Obviously only if this parcel has no present or future value to you. Sometimes tough to see into the crystal ball that far though.

Let us know how it comes out,

Kirk

This might help. Convienience fences can be at odds with boundaries (Montana) with pins recognized by licensed surveyors. My former property in MT had a "convienience" fence 5 feet off base in his property on one end, and five feet on my side on the other end. When I sold the property, I made it clear to the new purchaser, that the fence was not the line, and made sure the neighbor was in on the conversation. Jim
Some Texas stuff, seems germain

(quoted from post at 19:18:38 05/02/12) This might help. Convienience fences can be at odds with boundaries (Montana) with pins recognized by licensed surveyors. My former property in MT had a "convienience" fence 5 feet off base in his property on one end, and five feet on my side on the other end. When I sold the property, I made it clear to the new purchaser, that the fence was not the line, and made sure the neighbor was in on the conversation. Jim
Some Texas stuff, seems germain

Click to expand...

t has been said more than once in the prior postings, but it is wirth repeating, 1) You are in Texas, so whatever may be the law elsewhere may not be the same as here, 2) in Texas, adverse possession does NOT apply where the land owner has given permission to another to use his/her land........permission given can just as easily be revoked at anytime. Keep in mind though that you gave permission to previous owner, so to protect your land you need to give permission to current owner or stop his use before the timer gets you. I have way more costly experience at this than you want!

My Dad passed in 1995. My brother and I agreed to sell the farm house and buildings, keeping the land. We ahd to have a suryey done to split off the house, etc. The last survey was done in 1912 when Grandpa bought the farm, as far as we could find, and Dad built his tractor shed 2' over the line in 1945. The surveyor looked for evidence of the old fence line, but Dad had done way too good a job of clearing it. We finally had to get a quit claim deed from the neighbor for a 2' x 45' piece of laand. Thank God for old 4-H advisors and good long time neighbors or we'd have had a real mess. Just some thoughts.

I worked for a farmer, when I was in school, that had a quarter section and his neighbor also had a quarter section - life long friends. Well, he decided to have his land surveyed and found the line was about 10 feet toward his neighbor. So, he started "farming" the extra 10 feet while his neighbor also "farmed" the 10 feet as he always had. They tore up each others crops and generally made life a hell for each other. The neighbor died at a younger age - maybe because of all the bad feelings. That survey was the worst thing he ever did.

So, just weigh the possible consequences before deciding on what action to take. Nothing much worse than a bad neighbor if it comes to that.

Nancy,
A lot of good previous advice. Fences in Texas carry a lot of weight as to property line disputes. One thing not previously mentioned is who is paying the property taxes on the strip. If you are paying the taxes, this gives you a much better claim. I would recommend that you talk to an attorney regardless. BTDT.
C. L.