My parents live in Port Lavaca on a double corner lot. The existing fence on the back property line was put there more than 30 years ago by the previous neighbor. It was understood between he and my dad that the fence was into my dad's property by 1.5 to 2 ft to go around some decent size pecan trees that are right on the property line. Fast forward to today and the current neighbor has owned this property for a few years. He mentioned to my dad that he was going to repair/replace the worn fence. My dad told him not to concrete any posts into his property, existing fence posts were not concreted in. The neighbor went ahead and had new fence posts put in and set with concrete. My dad told him he needs to move them. The neighbor had a survey done and it showed how far into the property line the fence was. He then offered to buy the strip from my parents. They have no interest in selling a small strip, as they currently have their house listed for sale and don't want to affect the larger property value. The neighbor is being difficult and not wanting to move the fence

Question 1: My parents are going to send him a certified letter giving him 10 days to move the fence. Can they also include a statement that if the fence is not removed by said date, they will cut the concrete fence posts off at the ground and put them in his property? If not, what can they do after the 10 days?

Question 2: Is it worth doing an independent survey to mark the back property line prior to the sale to help sort this out or will the survey done during the sale help accomplish this?

Any other advice is appreciated. My parents are up in age and don't know what to do short of getting an attorney. I'm trying to help them from up here in Ohio.

By the way, there was an extension of some land we farmed when I was a kid that was wide enough for the neighbor to build a dirt road across that end of the field completely on our property and on their side of the fence.

At some point, my father decided to take out the fence and plow up the dirt road. We did and there was nothing the neighbor could do about it. He wasn't at all happy because his irrigation line was just barely on his side of the property line. He did build a new road within the property, but when he was irrigating, he had to have the aluminum pipe cross that dirt road and then have an elbow joint so run the pipe across the rows. Consequently he could not drive down that half mile while irrigating.

Today there is a sprinkler section on that quarter section instead.

In other words, the fence is not the boundary line.

It may or may not be built on the boundary line. I suspect that most fences are built within two or three feet of the boundary line, but that is not always true.

Eric, I agree. I'd wish a RE attorney would chime in. I'm going off my memory of AP from Judon Fambrough's class. I recall there is a list of acts that could lead to an AP claim. It's not just one item.

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Eric, I agree. I'd wish a RE attorney would chime in. I'm going off my memory of AP from Judon Fambrough's class. I recall there is a list of acts that could lead to an AP claim. It's not just one item.

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We had a doozy of an adverse possession up here a few years ago.

One farmer acquired a section of land by adverse possession. When the owner died, he willed the land to a boys home. After a short while, the boys home found out that someone was farming it and ordered him off of the land. The farmer responded by claiming adverse possession and taking them to court.

The farmer won. And since the mineral rights had never been severed from the surface rights, the ownership of the mineral rights followed the ownership of the surface rights and he ended up with those as well.

Texas A&M Real Estate Center: Fences & Adverse Possession

Could be in a pickle! Went thru same issue w property i bought to build in hou. Luckily i was able to wk out. Laws do exist that if your parents didnt "use" or "pocess" said land tbey could loose it. Work it out w neighbors. Mich cheaper vs hiring lawyer. AND... Much friendlier in long run

One thing that you'll sometimes see when someone dies or sells the land, someone else will step in and make some changes so that the new owner doesn't realize that anything has changed.

For example, there was one piece of property where the owner refused to permit the oil and gas companies to replace his gates with cattle guards. Within days after he passed away, those gates were replaced with cattle guards before the heirs were in any position to complain. I don't know whether or not the heirs ever realized that there were gates instead of cattle guards at the time of his passing.

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Texas A&M Real Estate Center: Fences & Adverse Possession

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Note the second paragraph of that pdf:

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A person who possesses and uses another's land without permission eventually may become the owner. No consideration is required.

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If the neighbor has permission of the owner, then it isn't adverse possession.

I assume tha tit would be best if the agreement was written and filed with the county.

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In other words, the fence is not the boundary line.

It may or may not be built on the boundary line. I suspect that most fences are built within two or three feet of the boundary line, but that is not always true.

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Amen, I live between 2 tech tards for some reason. My lot is 150' by 1000'. I had some fence built and they wanted to argue over whether the 6" fence post was on their property. I decided to pay my guy a few hundred dollars to move the posts because my neighbor could not comprehend that the string was not really his property line because it was tied onto a fence that had been built long ago and was not a survey marker. One of them even consulted his attorney. Whatever ding dongs.

On the other hand, steel poles in the ground anchored with concrete are just what you need for anchors for the guy wires when putting up a good, tall radio tower.

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Who doesn't set posts in concrete?

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People who live on sand.

Like others have said the OP's dad needs to look at this strategically since his own property is for sale. The look of the new fence won't hurt the sale, but the encroachment by the neighbor might. If I was a potential buyer and I sensed there was a brewing property dispute with the neighbor, yes, it would give me pause, even if it wasn't a deal breaker.

Since your dad intends to sell the whole property - what about rethinking his position on selling the 'fence strip'? It is probable he can get premium $ for those square feet to add to the deal - without subtracting from his potential sale at all! As a bonus, when the potential buyer for the rest of the property sees the survey it will be clean and not reflect any encroachment by the neighbor - the neighbor with a new fence who's all smiles.

I'm like your dad, and changing course like that would be out of character for me too; but I think it might be an opportunity to end the dispute while adding a little bonus money to his sale.

ETA - I re-read your dad already has the place listed. How does selling the fence strip to one person change the listing unless it's listed as XXX square feet, or already under contract?

The listing needs to reflect what is for sale. If they decide to sell the strip, the listing needs to be adjusted to reflect that.

I dont know how long concrete posts last or if they rot. All of the ones ive ever seen done are only 40 years old, so maybe in a few years Ill revisit the idea. Only posts ive had to pull or fences Ive had to rebuild were from those not set in concrete. That's why I was curious.

Either way, it really doesnt matter if the guy did or didnt. The parents are selling the house and they have a free new fence. Right?

So far, some good points have been made. Here's some more facts and info.

- The property has not been formally listed with a real estate agent at this point. It only has a for sale sign and my brother is helping with that side of it. He's trying to do a private sale.

- The current neighbor owner has only been owner for 2-3 years and my dad made it clear to him early on about the fence being across the property line.

- The fence is an old wooden picket fence that was almost in disrepair. The discussion between them was that anything done to the fence would require it to be moved back to the property line.

- My dad got along with the old neighbor a lot better. This new neighbor is not someone who can be trusted. Initially, he had the survey and brought paperwork over to my parents to sign stating he could HAVE the property free of charge. Luckily my parents are smarter than that. Then when my parents refused that, they offered $1000 for the strip of property that is two lots long. They showed interest in buying the property when informed that it would be for sale. When price was disclosed to them, they laughed and said that it was not even in the right ballpark. Currently, there are 3 serious offers, and 1 man is working on acquiring financing approval. All offers in ballpark of asking price.

- As far as fence replacement, my dad could care less if there's a fence on the property line. It doesn't serve any use as privacy due to the short height. The neighbor's main purpose in not wanting to move the fence and "lose" the property is because of the pecan trees right on the property line.

- One other question. If the base of the tree splits the property line, who has authority to cut it down? I know my parents can trim any limbs sticking into their property, but you can't exactly split the trunk in half.

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Either way, it really doesnt matter if the guy did or didnt. The parents are selling the house and they have a free new fence. Right?

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They didn't get a free new fence. They neighbor left the old rotting pickets and replaced the posts with new concreted ones. Looks didn't change, neither did the integrity of the crappy fence.

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Rip it out.
Have a party.
Post about it in the zoo
Profit!

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Remove fence from property and establish the true line with a single fence post on each corner. Inform neighbor that any fence put back in must adhere to the property lines.

Any fuss...tell 'em to piss off.

My parents had a similar issue in Houston. They were advised by a RE attorney to get everything figured out between both parties before the encroacher sold the property. Otherwise a sale of the encroacher's property that included encroached land would be a field day in court and there was a good chance they would lose the encroached land. The fence was part of a handshake agreement as well, but the encroacher purposefully kept some of the details about what he wanted to do to himself. The RE attorney said it came down to perceived use by a new homeowner. Even if a survey said it wasn't their property, someone putting together an offer on the encroacher's property has a visual perception that the land would be theirs and could have a claim to it in court.

Best case in your situation would be to figure out how to sell that strip of land to the neighbors and keep it out of court.

Just sell the house. Who cares where the fence is

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So far, some good points have been made. Here's some more facts and info.

- The property has not been formally listed with a real estate agent at this point. It only has a for sale sign and my brother is helping with that side of it. He's trying to do a private sale.

- The current neighbor owner has only been owner for 2-3 years and my dad made it clear to him early on about the fence being across the property line.

- The fence is an old wooden picket fence that was almost in disrepair. The discussion between them was that anything done to the fence would require it to be moved back to the property line.

- My dad got along with the old neighbor a lot better. This new neighbor is not someone who can be trusted. Initially, he had the survey and brought paperwork over to my parents to sign stating he could HAVE the property free of charge. Luckily my parents are smarter than that. Then when my parents refused that, they offered $1000 for the strip of property that is two lots long. They showed interest in buying the property when informed that it would be for sale. When price was disclosed to them, they laughed and said that it was not even in the right ballpark. Currently, there are 3 serious offers, and 1 man is working on acquiring financing approval. All offers in ballpark of asking price.

- As far as fence replacement, my dad could care less if there's a fence on the property line. It doesn't serve any use as privacy due to the short height. The neighbor's main purpose in not wanting to move the fence and "lose" the property is because of the pecan trees right on the property line.

- One other question. If the base of the tree splits the property line, who has authority to cut it down? I know my parents can trim any limbs sticking into their property, but you can't exactly split the trunk in half.

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I think that I'd just remove the fence.

Unless one has dogs to keep in the yard or small children or to keep out livestock, I'd prefer no fence at all.

If the new neighbor wants a privacy fence, he'll have to rebuild it anyway since the current fence doesn't sound to be at all adquate and he can rebuilt it on the line.

As for the authority to cut down the tree, I think it would require a mutual agreement between the property owners. If one cuts down the tree without a mutual agreement with the other, the other should have legal standing to file a lawsuit for damages. (Remember: I'm not a lawyer.)

Regarding adverse possession, would putting in concrete when the owner specified that concrete not be used for the posts be considered a hostile act that could be used to claim ownership of the land by adverse possession at some time in the future if not challenged?

Perhaps he is trying to set it up to claim adverse possession at some later date.

How about a rail fence on the property line between the tree and the end posts of each section being about two feet from the tree?

That is, you would have something like:

tree...|=====|=====|...tree...|=====|=====|=====|=====|...tree

and so on.

I'm with eric on this. Simply take the fence down, since it's on your property, and the neighbor that helped you build it is no longer your neighbor, nullifying the original arrangement. Put a simple iron rod (or locate the survey "pins" put there by surveyor) on the property corners and stretch a string between them to designate the property line. I fail to see how the "new" neighbor has any legal claim to the existing fence, although he no doubt "feels" a sense of ownership due to his actions, but at the same time, he acknowledged your parent's ownership when he offered to purchase the 2' strip from them.

The down side is the new neighbor can affect any sale negatively by causing trouble or spooking prospective buyers with his antics. Good luck! Crappy neighbors are the suck!