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Can I adversely possess property with a fence?

On Behalf of | Jul 9, 2019 | Real Estate |

In a recent case, a plaintiff attempted to rely on her maintenance of a fence that was in place when the parties took ownership of the property as evidence of her open and hostile adverse possession of the property. Texas courts have repeatedly found that maintenance of a casual fence does not create a designed enclosure, nor does it begin the running of the statute of limitations for adverse possession against cotenants. “Under the applicable case law, there are two kinds of fences: “casual fences” and fences that “designedly enclose” an area. If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a “casual fence.” Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant’s animals within the enclosed area, generally does not change a casual fence into a designed enclosure. A claimant may so change the character of a casual fence that it becomes a designed enclosure, and evidence of such a substantial modification is sufficient to support a jury finding of adverse possession. However, we have neither been cited to nor found a case that establishes whether or when modification requires a finding of adverse possession as a matter of law.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.1990) (quoting Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 288-89, 267 S.W.2d 781, 786 (1954)).

“Actual and visible possession can be established by a “designedly enclosed” fence, but not by a casual fence. ‘Where the fence existed prior to the claimant’s possession of the land and the claimant fails to demonstrate the purpose for which the fence was erected, the fence is a casual fence.'” Myers v. Wright, 224 S.W.3d 466 (Tex.App.-Dallas 2007) (quoting Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex.App.-Houston [14th Dist.] 1996, no writ)).

“Fencing, farming, cultivating and use of the land by one cotenant is not inconsistent with his right as cotenant and is not, of itself, proof of such possession of the property as would start the running of limitations against the other cotenant.” Hernandez v. Hernandez, 611 S.W.2d 732, 735 (Tex. Civ. App.-San Antonio 1981, no writ) (emphasis added).

Mowing the grass, planting flowers, and maintaining a hedge are not sufficient hostile acts to give notice of an exclusive adverse possession. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); Masonic Bldg. Ass’n of Houston, Inc. v. McWhrter, 177 S.W.3d 465, 475-76 (Tex. App. – Houston [1st Dist] 2005, no pet.).


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