Boundary Disputes and Adverse Possession: My Neighbor Built on My Land, Now What?
Last week, I received a call from a woman (let’s call her Norma) in San Antonio with a real property issue. When I asked what the problem was, she replied “My neighbor built his fence on my property, what should I do?” After a few minutes on the phone, I gathered the whole story. Turns out that her neighbor, though right next door, is in several regards far away. For one, Norma’s lot consists of a dramatically steep, thickly forested hill. When I asked if it would be possible to walk the perimeter, she told me to bring my machete and be ready for a workout. So while less than 100 yards away, Norma’s downhill neighbor is completely out of sight and mind. On top of that, her neighbor is in an entirely different neighborhood, over 5 minutes away by car.
For these reasons, not only had Norma never met her downhill neighbors, but the adjacent lots did not even have a fence between them. Norma explained that her neighbors recently fenced in their lot, thus separating them for the first time. Suspicious, Norma hired a survey company to stake out the boundaries of her property. Turns out that the fence was built at an angle that crept ever so slightly onto her property, reaching a maximum encroachment of about 2.2 feet. While not fuming mad, Norma was understandably concerned at the prospect of losing her property. Like most Texans, she had heard that people who adversely claim another’s land are sometimes successful in essentially stealing it. She wanted to know it there was any truth to what she’d heard, and what she should do to keep her lot intact.
As to her first concern, I informed Norma that yes, Texas does follow the Adverse Possession doctrine, as reflected in the Texas Civil Practice and Remedies Code. Section 16.021 of that Code defines adverse possession as "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." It is interesting to note that the code references adverse possession in terms of a “statute of limitation”. Much like how a breach of contract claim must be brought within 4 years before the claim is barred by the statute of limitations, a landowner must file suit against an adverse possessor within a certain limitations period, or his claim expires. The adverse possessor is then free to claim the land as his own.
The specific statute of limitations applicable depends upon the facts of a particular case. If an adverse possessor claims under “color of title” (a seemingly legitimate claim that for some reason does not fit in the normal chain of title), a landowner has only 3 years to kick the possessor out. If a possessor uses the property, pays applicable taxes, and claims under a duly registered deed, a landowner has 5 years to remove them. If a possessor simply uses and possesses the property of another, the owner has 10 years to bring suit to remove them. There are also a couple 25 year statutes, but they are less commonly used. Regardless of what statute may apply in a given scenario, the bottom line is that if someone is adversely possessing your land, time is of the essence.
Norma was still well within the timeframe of any adverse possession statute, but without action, she was indeed in danger of losing some of her land. Even for such a small strip, any loss of land may result in a less desirable lot, thus shaving thousands off a sales price. Even if you are not one to worry about a few feet here and there, adverse possession can cloud title and confuse legal descriptions, resulting in uncertainty that may cost you future sales or even the ability to mortgage your home.
After identifying the problem, Norma’s next question was what we do about it. The first option for dealing with adverse possessors is to physically remove them in a peaceable fashion. If that cannot be accomplished, a landowner may have luck with a forcible detainer action brought in JP Court. When both of these efforts fail, the landowner’s only remedy is to enforce the Civil Practice and Remedies Code provisions through a trespass to try title action, filed in a district court. I explained to Norma that whichever method she tried, it would most likely be more stressful and costly than she might like.
A final option I suggested was the Boundary Line Acknowledgement. This document allows neighboring adjacent landowners to come to an agreement that avoids costly removal proceedings without sacrificing ownership rights. Basically, both owners agree that there is a fence or structure not in compliance with the existing legal descriptions. They further agree that, despite the intrusion, they will continue to respect the original legal descriptions. The document usually contains language affirming that no encroaching features shall constitute a hostile claim for adverse possession purposes. In exchange for this acknowledgement, the true owner usually foregoes costly removal proceedings. If they change their minds, the document can provide who will bare the costs of removal, or split costs between them. To be most effective, the acknowledgement should be signed and notarized by both owners, incorporate by reference a survey of the correct legal descriptions, and be recorded in the county property records.
After reaching out to Norma’s downhill neighbor, the parties agreed to execute a Boundary Line Acknowledgement. Norma sent me the diagram of the proper boundary lines, prepared by a licensed surveying company. After meeting with Norma and my mobile notary at Norma’s house, we took the short drive to her neighbors, who proved to be very kind and understanding. They explained that the incorrect fence was probably a product of their lot’s strange legal description. Unlike the cookie-cutter lots around them, Norma’s neighbors lived on an old farmstead that predated the neighborhood. Their land was described by metes and bounds, a system of marking land by physical boundaries, such as trees , creeks, and metal stakes. That is opposed to plats, which consist of uniform lot sizes readily identifiable in county records. After showing us around their chicken coop and vegetable garden, the neighbors had no problem signing the acknowledgement. Likewise, Norma had no problem allowing her neighbors to keep their fence up as is. While not every case ends up being this amicable, the Boundary Line Acknowledgment is just one example of how a knowledgeable real estate attorney can help achieve desirable results that avoid stress, save money, and preserve rights.