Two years ago my next door neighbor built a concrete retaining wall and fence between our back-yard driveways.

My job was recently transferred to Oregon, so we got a survey of the property so we could get it ready to sell it.  The new survey says the fence and retaining wall are on our property, as is part of his driveway. What should I do? – L.F., Greenville



First, you need to remember that your knowledge of this problem must be disclosed to any buyer. Also, if the house is mortgaged, your contract with the bank may require you to notify a certain department within the bank’s mortgage-servicing section about the situation. That is a serious concern because failure to notify the bank might leave the bank handicapped in its legal ability to protect its interest in the property.  If that happens, they can sue you for any lost property value that could have been averted if you had notified them sooner.

The first action you need to consider is having another survey performed. Sometimes there are discrepancies in new surveys, especially if a considerable amount of time has passed since the last survey was completed or the survey was done by a non-local survey company.

There’s no use in going forward with legal action against your neighbor if you aren’t absolutely certain that an encroachment has occurred. If you have another survey performed and it confirms the finding that your neighbor has built his fence and carport on your property, then you have many options.

Initially, you should consider approaching your neighbor to work out a sale of some of your property.  You can have a surveyor figure the amount of property your neighbor has “wrongfully” used. You can then have a deed of sale drafted that conveys that land to him for an agreed upon purchase price. Essentially, he can buy the property he built his fence, wall and driveway on from you. If you or your neighbors are not interested in a sale, or if a mortgage contract prevents you from selling a portion of your property without prior approval (which is highly likely if you have a mortgage), then you have other options.

If your neighbor disputes where the boundary line really is, you can contact an attorney and bring a claim asking the court to rule on the location of the boundary line. If your neighbor claims he owns the land now because you failed to object when he built the fence and carport, then you will most likely have to file a claim to determine who has title to the property.

If the fence, wall and driveway were only built two years ago you likely won’t have to worry about your neighbor claiming ownership through adverse possession. Typically, when the rightful owner is still paying taxes on the property, the statute of limitations for an adverse possession claim is ten years.

Litigating a property dispute can be expensive, but courts may order the wrongful party to pay the rightful owner’s court costs, which often include the costs of the surveys.

My advice to you would be to notify your mortgage company and try to sell the land to your neighbor.  If that doesn’t work, then contact an attorney and have him advise you of your options based on the specific facts of your case.  You should handle this as quickly as possible to prevent it from interfering with the sale of the house.



If you have a brief legal question on any topic, please forward it to Daniel@smrt-law.com.

Daniel Ray is an Greenville, Texas attorney licensed in all Texas courts.  His firm, Scott, Money & Ray, PLLC, represents the City of Greenville, Hunt County, and many other public and private North Texas entities.  His practice emphasis is civil litigation, wills and trusts and real estate.

This article is intended for entertainment and educational purposes as well as to give the reader general information and a general understanding of the law, not to provide specific legal advice.  By reading this article you agree that you understand that there is no attorney-client relationship between you and the author or publisher.

 The article should not be used as a substitute for competent legal advice from a licensed professional attorney in your area.

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