Real Estate Law
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It is likely that the neighbor has adversely possessed the 2 1/2 feet over a term of years. Adverse possession is the taking of title to real estate by possessing it for a certain period of time. Title means ownership of real estate. The person claiming title to real estate by adverse possession must have actual possession of it that is open, notorious, exclusive and adverse to the claims of other persons to the title. By its very nature, a claim of adverse possession is hostile to the claims of other persons
In Texas, the duration of such possession is three (3) to twenty-five (25) years, depending upon the circumstances of the case. Texas Civ. Prac. Rem. Code §16.021 through 16.032.
If the fence has been there for 27 years, it has likely been acquired by the neighbor. Therefore, before you move the fence, you would need to speak to the neighbor, explain that the fence is 2 1/2 feet on your property and ask if they will agree to have it moved.
If they refuse, your only option would be to go to court and have an order entered to have the fence moved. However, your chances of winning in court aren't very good if the fence has been there this long.
It doesn't matter how long the neighbors have lived there. What matters is how long the fence has been there.
This is so because of the legal theory known as "tacking". Tacking allows a person to "tack" his adverse possession claim to that of a predecessor-in-interest (previous property owner) to satisfy the year requirement.
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