Pond Boss Forums GENERAL QUESTIONS Pond Boss Surveys, Fence Lines and neighbors...

I have an old copy of a survey for my place, working on a new survey right now.

I may have an issue with one fence line. Seems whoever (perhaps a long as can be remembered) may have built the fence on the back side of my property about 30 - 40 feet inside my property line. I checked with my adjoining neighbor who has lived on his property for 80 years - he said the "property line IS the fence line, always has been as far as I�m concerned." He also admittedly never had his property surveyed.

I plan to refence that line later this year.

What would you do? Tell the neighbor to pound sand and put the fence on the property line or just put it back in its current location? The amount out side the current fence amounts to about 2 acres total

I sure wouldn't give away 2 acres. Present him a copy of the new survey, from a lawyer if necessary. Before you put the new fence where it belongs.

Old fences and old surveys were more likely to have errors (when the chain breaks it gets a link shorter) and need to be straightened out over time.

One of the guys I work with had the same situation, but on a MUCH smaller scale in suburbia. I don't remember all the details, but there was some legal jargon about potentially forfeiting the property if the original owner neglects or doesn't use the property in question and the adjoining neighbor has maintained and used it over long term. Personally, I don't understand it...or care to believe it. Maybe Ewest can weigh in.

Gator,
I'd sure consult a good land-use lawyer. I've been through what your going through a couple of times. Once in Wisconsin and once in Virginia.

Wisconsin property lines were fairly well defined when I had my issues. But, the section markers were put in during the 1930s, and my deed went back to the mid-1800s. It still came down to "adverse possession" in my favor because of a regularly used driveway and fence line.

Here in West Virginia, and Virginia, it is quite murky, as so much is based on where streams were 250 to 400 years ago, where old rock piles and small trees were located in the 1600s and 1700s, and how big the strides were of horses and guides. Again, it came to down to something similar to adverse possession (implied easements, maybe??), but it is a term I don't remember.

Texas is probably somewhere in between. But, eighty years is a long time when it comes to claiming a property boundary. Usage of the property, paying taxes on the land, fences, all play a big part in determining the boundaries.

Unfortunately, it frequently comes down to the best versed lawyer.

Good luck,
Ken G.

I have 3 "misplaced" fence lines. Two of them are in my favor and one isn't. None are really big areas, maybe a couple of acres here and there. I asked a Lawyer that I know about it and he told me that the only way you could legally take someones land was in a court of law. I have no idea if he knew what he was talking about.

I've thought about it and decided that getting a dozer to clear land, building new fence and defending myself either legally or personally just isn't worth the trouble and expense.

If your state has the �seven year law� or something similar and your neighbor has been maintaining that two acres, you might have a problem. I ordered this map of my place from the tax man to set the record straight with my neighbor, she claimed she owned 1 � acre of my property, come to find out I own one acre of what she thought was her property. An acre goes for $4000.00 around these parts, so we tend to watch our property lines pretty close.

Gator do a search on adverse possession and or prescriptive easement. The time periods for such use run from 3 to 20 years depending on the state. Texas has a statute on it . Try this one.

http://recenter.tamu.edu/pdf/1152.pdf

My deed is recorded to correspond to 1/2" rod markers for the boundary lines. Assuming his deed is likewise recorded to correspond to the same rods - it should be pretty clear where each of our property lines is at, right?

So if the rod is 30 feet outside of the old fence line, that property is (legally) mine, right?

Whether or not I decide to go build a new fence on it is another story, I suppose...

Update. I spoke with my Real Estate agent for a reality check on the situation. He agrees that when my survey is complete that the surveyor will also check the deed on my neighbors property, IF both refer to the same rods + the measurements agree - there is little argument (in court).

However, I can�t go out there and just build a new fence or move and old fence that is current "considered" a property line. I must provide written notice and give my neighbor 6 months to agree or dispute the action.

Seems that my neighbor would have had to file affidavits and other legal activities to have a claim to the land in question. According to my Real Estate guy he cant just claim it, additionally fences are not considered legal property lines�this from my real estate guy � prolly need to check with an attorney too

This is another situation where a real estate attorney familiar with your state laws is valuable.

Thanks guys,

Im in the process of surveying the land now, should know more soon. I think the first step is to go back and show the new survey to my neighbor again and see if he still feels the same way. I would rather not get in a big shootout over this - but in my mind 2 acres is worth it.

If we cant work it out amongst ourselves, then a good attorney is in order.

I read the link that Ewest provided. It was an eye opener regarding adverse possession in Texas. The most interesting (to me) part was the factoids at the bottom of the writing. The adverse possessor has the right to go to court and claim the land.

I assume (yeah, I know) that if the "trespasser" has not been to court, the original owner still reatins title and had better get his butt in gear and start fencing.

Reality check: If you are not a local resident, and the "trespasser is local, goes to Church, votes locally and shoots pool with the local Judge; you are usually hosed.

Being a good neighbor is OK until you enter a predator/prey relationship with a local neighbor.

ewest - a good read indeed.

Dave - I "think" this may be in line with what my Realtor told me. If someone is trying to claim your land by means of Adverse Possession, they MUST file an affidavit in court claiming the land. They can�t squat and call it their land due to Adverse Possession...?

ewest - can you comment on that?

I think there is a couple of lessons here...Get a new survey and negotiate BEFORE closing + If there is an issue, get get it resolved, dont let it languish.

Gator I don't know what that means. That is not the law in most places. I don't know about Texas but no affidavit is required in MS ,ALA or ARK. Have you ever heard the saying "possession is 9/10ths of the law" . If someone has possessed land for the required time in an open , hostile , uninterrupted manner against everyone -- well there you go.

Forget what the RE agent said and talk to a real estate attorney.

Gator: Ewest's last post is right. There is usually no requirement for notice by affidavit or otherwise. The possession for the requisite period of time is the key along with the adverse possessor's belief that he owns the land up to the fence and the fact that he continuously occupies that land. Real estate agents are notoriously uninformed about these technical adverse possession requirements.

So much for Real Estate Agent advice....

: (

ewest, one point I am confused on - IF there are marking rods and IF both of our deeds agree that the rods are the boundry line. Im paying taxes according to the deed. The deeds still reference the rods...wouldnt the other land owner have to petition the court to change the deed(s)?

BTW, on your advice, I called a local attorney.

Alligater,Please keep us up to date on this.I have a surveyer coming out soon as Im haveing a nieghbor coming over and poaching and Im going to put up a new fence he cant cut anymore.
Tom G

My property line goes to the center of a live creek. Years ago the owners agreed to put fences back and forth on the banks so each neighbor can have a stretch to water his cows. My neighbor told me that the previous owner to my land tried to get his little piece back but after going to a lawyer decided it cost to much and gave my neighbor the deed.
If I were you I would go to the lawyer, tell your neighbor your rights and offer to sell your neighbor the land for really cheap to not have to go to court. Explain to him that you don't want to pay taxes on his land and maybe he'll compensate you for it and not have hard feelings.

Guys, I'm just in law SCHOOL, but I want chime in FWIW. Based on my book lurnin, adverse possession of another's land for the statutory period required by a state is enough to claim possession of the land, and no affidavit is needed. However, if that adverse possessor wants to sale or devise the land, THEN they would need to go to court to quiet the title to that land, which would then allow them to actually get a marketable title in their own name.

Is that right Ewest, at least in a general sense? The biggest thing to remember is that this area is controlled by state law, and the quirks and requirements of one state may not be the same as another state. Also, remember that I am a law STUDENT and am in no way qualified to give any actual legal advice, which is definitely for everyone's benefit at this point.

Do you have title insurance that is still valid?
Here is a start.
Texas law
The person occupying the land is recognized as owner unless the "hostile claim of another person", who is not in possession of the land, is brought in court (a) within 3 years if the occupant�s claim is based on having "color of title," or (b) within 5 years if the occupant�s claim is based on using the land, paying taxes on the land, and having a registered deed to the land that is not a forgery, or (c) within 10 years if the occupant�s claim is based on use of the land only. This is a very brief account of a set of very complex laws. If you think they apply to you, visit an attorney who is Board Certified in Real Estate law right away.
General info web site, hekps with terms
More Texas law
http://recenter.tamu.edu/pdf/1152.pdf
General information to get used to the terms and some conditions.
Good luck
http://www.lectlaw.com/files/lat06.htm

Rad good info and point. Title insurance might be a source of 2 things 1) dollars if there is a loss 2) pay for defense (attorney to clear the title). Often title insurance excepts from coverage encroachments and those things shown by a survey ( boundary fence on your property). Do check on title insurance if purchased.

David you are right about every state being different. Usually you can sell or devise whatever you own. But that does not mean your title is clear or marketable. If the buyer wants clear title then a suit would have to be filed. Some sales go through with just an affidavit from a disinterested source on possession and a survey showing an old fence. Many times the people on both sides don't know the fence is not on the boundary. The site Rad posted is the best advice - "If you think they apply to you, visit an attorney who is Board Certified in Real Estate law right away."

RE: Title Insurance. I read mine and it exempted durn near everything including boundary disputes.

Ditto DD, makes me wonder exactly what the heck it DOES cover. Prolly not much if I had to guess.

This aint lining up well for the home team.

Follow-up:

I spoke with a local attorney in my county who specializes in real estate/property disputes. According to him, the Texas law on adverse possession applies to this situation. He said if the other owner can show proof that he has had possession and maintained the land for 10+ years; the law is in his favor should we go to court.

In my case the neighbor has maintained the land and "could" rightfully acquire the land - even though our deeds match and the deeded boundary is not on the fence line, as he is claiming. It seems dishonest to me, however I�m sure my neighbor has a different perspective. I asked him why and all he gave me was because that�s the way its always been...so much for deeds.

Lesson learned. Thanks ewest (and others) for your assistance.

There were several things I forgot when I wrote my note above (it all happened almost 40 years ago). The neighbor with whom I had the dispute died before the issue was completely settled. His property sold without any dispute using what was known as a "quit claim deed." The new owner never questioned my property boundaries.

A few years later, the new owner of his property bought out my whole parcel without a word being said.

Maybe you can just outlast your neighbor.

One other item to ask questions about -- here in WV, if the disputed parcel is substantial in size (acre plus??), the person claiming the property must have been paying taxes on the claimed land for some period of time.

Good luck
Ken

catmandoo,

"Maybe you can just outlast your neighbor."



I plan on it.