Reality check--neighbor's fence on in-law's property

[ustmd]

Lots of good advise so far. But what to do depends on several factors that you havent said/answered yet.

First, someone else already asked, WHAT type of fence????Decorative?Livestock?Privacy?

Second, have you even talked to this nice old lady? If so, what was her reaction?

Third, You said this woman has lived there for 10 years? Was this fence there the whole time? And you also said that your in-laws JUST bought the place last year, and during the survey is when the issue was discovered right?

I guess I have to ask, why did you not survey BEFORE you bought the place?

I am sorry to say that legally, I dont think you can do anything, other than maybe going after the people that sold the place to your inlaws or the realtors. Because if this woman has lived there for 10 years with no issues, and now all of the sudden the new neighbors(your inlaws) want to raise a fuss...Leagally, I think she owns the land now.

Best thing you can do is talk with the old lady and see if she is willing to let you move her fence for her. If she refuses, you've got no beef with her. You need to go after the people that sold the property to your "inlaws)

I appreciate all of the great feedback.

Here is some information:

1. The fence is a 3 strand electric fence for a horse pasture.

2. We have talked to the old lady. She is in disbelief. Her common comment is "I am losing so much of my land". She keeps missing the point it was not her land to begin with. The guy who installed her fence installed it in the wrong place. This issue is not in doubt. The last surveyor actual uncovered the official pins in the ground that mark the corners of her lot.

3. The issue was discovered when my in laws did the survey prior to purchasing the open 10 acres. Just to clarify, the old lady and my in laws houses are in a legal defined sub-division. The 10 acres are not in a sub-division (it is a "meets and bounds" property) adjacent to the sub-division.

4. My in laws have consulted a lawyer. Legally in Texas, the old lady has no claim to the land. An "Adverse Possession claim" cannot start until after 15 years and every time the property is transfered the clock resets. Also, adverse possession claims almost never succeed in Texas.
(I am not saying they don't succeed in other states
Actually in Texas, we could have just bulldozed the fence and moved on.

My question is not with the legal issues, but the neighbor issues. The old lady is in denial and we are trying to be reasonable.

 

[LD1]

If it is just 3-strand electric, how hard could it possibally be to just move it for her?

And why is she worried about loosing all that land if she is just going to move anyway?

I think the correct thing to do is get it taken care of BEFORE she sells. Otherwise the new owners could get very upset IF they thought they were buying "all the way" to the fence.

 

[blueriver]

I appreciate all of the great feedback.

Here is some information:

1. The fence is a 3 strand electric fence for a horse pasture.

2. We have talked to the old lady. She is in disbelief. Her common comment is "I am losing so much of my land". She keeps missing the point it was not her land to begin with. The guy who installed her fence installed it in the wrong place. This issue is not in doubt. The last surveyor actual uncovered the official pins in the ground that mark the corners of her lot.

3. The issue was discovered when my in laws did the survey prior to purchasing the open 10 acres. Just to clarify, the old lady and my in laws houses are in a legal defined sub-division. The 10 acres are not in a sub-division (it is a "meets and bounds" property) adjacent to the sub-division.

4. My in laws have consulted a lawyer. Legally in Texas, the old lady has no claim to the land. An "Adverse Possession claim" cannot start until after 15 years and every time the property is transfered the clock resets. Also, adverse possession claims almost never succeed in Texas.
(I am not saying they don't succeed in other states
Actually in Texas, we could have just bulldozed the fence and moved on.

My question is not with the legal issues, but the neighbor issues. The old lady is in denial and we are trying to be reasonable.

Three stand electric is not considered "permanent fencing"
Go by the original pins .. she has it for sale and it will probably sell ... no reason for the new owners to assume where the line is.

Put your fence in at your expense and its done.

 

[lstinthot]

We just bought a house that we found the lot line was not where the owners thought it was. Both parties thought the fence between the two houses was only 7" off property line. It turns out it is up to 9 feet. I would lose my driveway if they wanted the property back. We had the owner get an easment that included our backyard, there is a nice 14 x 12 foot goldfish pond on the neighbors property that belongs to us. This arrangement has been this way for some time and fortunately the neighbors were willing to sign the easment. Just cost the owner attorney fees to file the easment and the new survey showing the easment. Now we can keep our fenced in back yard in tact and our side entry driveway will remain useable. The easment added about 2400 sq ft to our 5.1 acres, not much but its impact on my garage was big.

I would say try to work it out and show the neighbor where the lines are before the sale and move the fence. I was not willing to buy unless there was an easement or possibility of dispute.

 

[DNC]

You keep referring to her fence. It's not her fence. It's YOUR fence. She put it on YOUR land. Take it down or have her pay to move it.

 

[beppington]

You keep referring to her fence. It's not her fence. It's YOUR fence. She put it on YOUR land. Take it down or have her pay to move it.

That's right. If OP doesn't want to just KEEP the fence she paid for but that is on OP's land, which he could do, he could take it down & stack it on her land.

But I'd DEFINITELY put up a new fence of some kind, preferably a state recognized "fence", just 3 to 6 inches on YOUR side of the line.

While this will probably continue to bother her, I don't see how she could legally argue either move.

 

[two_bit_score]

After 10 years, I'd be surprised if she doesn't own that strip of property.

I would be very surprised if she would. In Texas adverse possession is much more difficult to establish than most think.

If it were as easy as just moving your fence over a foot or two and allowing it to go unnoticed for a few years rural property lines would be complete chaos.

 

[Larry Caldwell]

In my state, it's not the neighbor's fence, it's your in-law's fence. It's on their property, it's their fence.

 

[jinman]

In my state, it's not the neighbor's fence, it's your in-law's fence. It's on their property, it's their fence.

EXACTLY! If somebody drills a well over the property line, what then? Does the land the well is on belong to the driller? Not in Texas! My wife got a free well many years ago because a neighbor had drilled it 10' over the property. He had to drill a new well on his side of the line.

I'm always amused that people put so much credibility into a fence as to say they define property. A fence is not a legally defined entity for property. How many legal property descriptions say, "In a line from a barbed wire fence. . . " or some such? To my knowledge, fences never define survey marks. I had a neighbor tell me if I built a fence not on the line, all the land between the line and my fence would be his. I just laughed at him. I asked him if I built a fence around my barn that was 75' from the line if the land between the fence around the barn and his property line would belong to him? I followed that by asking him to tell me how far I had to set back a fence before the land between would not belong to him. Actually, I have no fences on my property, but the property lines are there just as surely as if some fence existed. In Texas, the legally defined property description marked with a legal survey is what you own and pay taxes on. A misplaced fence does not convey property. It becomes a gift to the person on whose property it is built and is subject to his/her discretion.

 

[blueriver]

That's right. If OP doesn't want to just KEEP the fence she paid for but that is on OP's land, which he could do, he could take it down & stack it on her land.

But I'd DEFINITELY put up a new fence of some kind, preferably a state recognized "fence", just 3 to 6 inches on YOUR side of the line.

While this will probably continue to bother her, I don't see how she could legally argue either move.

Well I'd put it right on the line. Draw a string from one marker to the other and thats where the fence goes ... I wouldn't give up an inch of my land.

Reminds me of a place I had years ago ... I was putting in the line fence and the neighbor met me at the fence and told me to make sure I kept my fence over on my line one foot cause when he put his in he was going to stay one foot over on his ... I asked him "who's going to maintain that two feet between the fences?"

He went home ...

 

[JamesHW]

Since this is Texas, naturally Texas law on adverse possession would apply. I would avoid taking any direct physical action such as setting posts or removing the disputed fence until good legal counsel is received. I read a good article on texas law regarding adverse possession and it would appear your inlaws may benefit from the fact that they recently purchased the property and only found out about the issue recently, which by my reading of the law, the statute of limitations (3, 5 or 10 years depending) may start from the date they received the new survey (NOTE: IANAL, they need to get good counsel on this).

Getting good legal advice on this should not be expensive. I fall on the side of hashing it out with the neighbor in a friendly manner, but clearly understanding their rights under the law. Also, making the realtor handling the property sale aware of the issue would in my opinion bind her to have to disclose to any prospective buyers, thereby clouding the title somewhat and possibly making the property more difficult to sell.

Also, curious if the inlaws purchased title insurance? If they did, couldn't legal fees might be covered under the insurance?

 

[beppington]

Well I'd put it right on the line. Draw a string from one marker to the other and thats where the fence goes ... I wouldn't give up an inch of my land.

What if you put the fence smack on the line, but then decide to use concrete on some of your posts. YOUR concrete may be on THEIR land

I can certainly understand not wanting to give up an inch of your land, but I just think a minimal buffer is more likely to eliminate potential issues.

 

[LBrown59]

Go by the survey and get the fence put up asap ... don't worry about her paying for it. Just get it done at your cost and end it.

That way ... if someone buys it they know where the line is "The Fence" per the survey.

Why is it that the old lady's survey and her deed are the incorrect information ?

 

[Professor Marvel]

Since this is Texas, naturally Texas law on adverse possession would apply. I would avoid taking any direct physical action such as setting posts or removing the disputed fence until good legal counsel is received. I read a good article on texas law regarding adverse possession and it would appear your inlaws may benefit from the fact that they recently purchased the property and only found out about the issue recently, which by my reading of the law, the statute of limitations (3, 5 or 10 years depending) may start from the date they received the new survey (NOTE: IANAL, they need to get good counsel on this).

Getting good legal advice on this should not be expensive. I fall on the side of hashing it out with the neighbor in a friendly manner, but clearly understanding their rights under the law. Also, making the realtor handling the property sale aware of the issue would in my opinion bind her to have to disclose to any prospective buyers, thereby clouding the title somewhat and possibly making the property more difficult to sell.

Also, curious if the inlaws purchased title insurance? If they did, couldn't legal fees might be covered under the insurance?

I agree completely with James here. Although it kills me to agree with anyone from DC. But the sooner you deal with it the better.
As my lawyer told me in a similar situation where we tried to be nice to the neighbors, "no good deed goes unpunished". He was right and it took years and the neighbors are as hostile as if we just told them to get off the first day.

 

[Willl]

"Good fences make good neighbors"

I'd be building a new fence today.

 

[LBrown59]

Bla Bla Bla Bla ... go by the survey ... a legal document and build a new fence before the property is transfered.

Just because it's the newest don't mean it is the correct survey and or deed.

 

[blueriver]

Why is it that the old lady's survey and her deed are the incorrect information ?

No ... he stated the survey revealed the Offical Markers. I'd say thats pretty darn close.

 

[blueriver]

What if you put the fence smack on the line, but then decide to use concrete on some of your posts. YOUR concrete may be on THEIR land

I can certainly understand not wanting to give up an inch of your land, but I just think a minimal buffer is more likely to eliminate potential issues.

Oh how true that is ... but that portion of the concrete is underground or at least ground level. I guess I'm different, every fence I've ever built was on the property line.

It also gets me that the current survey also uncovered the offical markers ... so I'm thinking there's not alot to argue over and especially nothing to pay an attorney for.

 

[zzvyb6]

Be careful of what you call a 'survey'. Much surveying is done today by differential GPS and here in MI I was just told by the head of and engineering (survey) company that its NOT a legal survey because the GPS delineatitions drift from day to day and hour by hour. That's why you see Google and Bing aerials with roads overlaid that are not coincident. Just recently a pipeline company was planning to install a new line right through some people's houses because the 'survey' done by GPS put the 'new' easments up to 40' off. OOps. I went through this too when a roadway 'easement' was done quick & dirty by GPS and its off by a laughable amount.

Only legal survey in this county according to Circuit Court is done by theodelite and chains from the county markers. Hope you are not jumping to the wrong conclusions.

 

[JamesHW]

Oh how true that is ... but that portion of the concrete is underground or at least ground level. I guess I'm different, every fence I've ever built was on the property line.

It also gets me that the current survey also uncovered the offical markers ... so I'm thinking there's not alot to argue over and especially nothing to pay an attorney for.

The offical markers would be pieces of rebar set in the ground? By "official", I'm assuming he meant corner stakes from a previous, presumably filed survey. The only offical marker I've ever seen anywhere near my property is a brass plate set in the middle of the road adjacent to the north western corner of my land. The old, now retired surveyor who did a 1960's survey of my acreage property explained to me that my northern border coincides with one of the original Kayadrossera Patent purchased from the Mohawk and Iroquois in the early 1700's.

Having said that, the surveyor finding previous survey corner posts at the point where he determined the corners should be certainly add weight to his survey.

In a dispute such as this I suspect the eldery ladies borders will need to be confirmed independently, unless she conceeds that the fence was placed in error and accepts the more recent survey. I doubt if the moving of the fence will reduce the price of her land, but people can get funny about fence lines and spend money on lawyers far in excess what the actual value of the disputed area is worth.

After disclosing the issue to her perhaps an offer to share in the expense of moving the fence and clearing up the title in the process prior to her listing the property will entice her to be nice and agree.