The Fence That Ate the Backyard

The Survey That Changed Everything

When Linh and Marcus Nguyen listed their Prosper home in the spring of 2025, they assumed the hardest part would be finding a buyer in a cooling market. They had owned the house for eleven years — a four-bedroom on a generous corner lot, backing up to a greenbelt, the kind of property that Collin County buyers were still competing for even as interest rates pushed affordability to the edge. The surveyor they hired as part of the listing process was, as far as they were concerned, a formality.

The report was not a formality. The surveyor's stakes showed that the wooden privacy fence along the south boundary of their property was not on the property line. It was fourteen feet inside it. The neighbor on the south side — a retired couple who had lived there since 2013 — had built the fence themselves that year, and for eleven years the Nguyens had never thought much about it. They used the north side of their yard. The south side, a narrow strip running the full length of the lot, had been the neighbor's garden, their storage shed, their landscaping, their territory. For eleven years, without interruption, without objection, without a written agreement of any kind.

Their real estate attorney, reached on a Friday afternoon, did not say what they hoped she would say. She said: "We need to talk about adverse possession."

What Adverse Possession Is — And Why It Exists

Most people's first instinct when they hear about adverse possession is disbelief. The idea that someone can acquire legal title to land simply by using it — without buying it, without the owner's consent, without so much as a handshake — strikes most homeowners as both impossible and wrong. It is, in fact, both possible and the law in every state in the country, including Texas.

The doctrine is ancient, rooted in English common law, and its purpose is practical rather than punitive: land that is being actively used, improved, and maintained should not sit in legal limbo because an absentee owner fails to notice or respond to an encroachment for a decade. Courts and legislatures have long recognized that quiet, stable property ownership — the foundation of the real estate market — depends on resolving competing claims over time rather than holding them open indefinitely. Adverse possession is, at its core, a statute of limitations on a property owner's right to eject someone who has been openly using their land.

In Texas, the primary adverse possession statute is Texas Property Code Section 16.026. Under that provision, a person who possesses real property in a manner that is actual, open, notorious, hostile, exclusive, and continuous for a period of ten years acquires legal title to the property — title that can be quieted in court and recorded in the county deed records. The property owner who fails to act within that ten-year window loses the right to eject the possessor and, ultimately, loses the land.

Texas also maintains a three-year adverse possession statute (Section 16.024) that applies when the possessor holds a written instrument — a deed, even a defective one — that purports to convey title. A five-year statute (Section 16.025) applies when the possessor pays property taxes on the disputed tract and holds such a deed. But the ten-year statute, requiring no deed and no tax payments, is the one that catches most Texas property owners by surprise. It is the legal mechanism by which a fence built in the wrong place — maintained, unquestioned, and undisputed for a decade — can change who owns the land behind it.

The Six Elements That Must All Be Present

Texas courts do not make adverse possession easy. Every one of six required elements must be proved by the party claiming adverse possession, and the standard of proof is clear and convincing evidence — a demanding threshold that sits above the preponderance standard used in most civil cases. Missing even one element defeats the claim entirely.

Actual possession means physical use of the land in a manner consistent with its character and ordinary use. Maintaining a garden, erecting a shed, mowing grass, storing equipment — these are the kinds of acts Texas courts have recognized as establishing actual possession of residential land. Walking across it occasionally is not enough.

Open and notorious means the possession is visible and obvious — the kind of use that a reasonable property owner paying attention to their land would have noticed. A fence erected on a property line is, by definition, open and notorious. A trespasser who slips onto property at night and leaves no trace is not making an open and notorious claim.

Hostile does not mean aggressive. In Texas, "hostile" means the possession is inconsistent with the owner's rights — that the possessor is using the land as their own, without the owner's permission, in a way the true owner would have the right to object to. This is the element that most often saves Texas landowners: if you gave the neighbor permission to use that strip of land, the use is not hostile. It is a license. A license cannot ripen into adverse possession no matter how long it continues, because the element of hostility is absent from the outset.

Exclusive means the possessor holds the land to the exclusion of the true owner and the general public. The possessor need not exclude everyone — only those with no right to be there. But a possessor who allows the entire neighborhood to use the disputed strip has not maintained exclusive possession.

Continuous means the possession has not been interrupted for the full ten years. Texas courts have been careful about what "interruption" means: a temporary absence or seasonal pattern of use does not necessarily break continuity if the overall pattern is consistent with ownership. But if the true owner successfully ejects the possessor — even briefly — the continuous period ends and the clock restarts from zero.

All six elements. Clear and convincing evidence. Uninterrupted for ten years. That is the standard. The neighbor's garden in Prosper met every element of it.

What "Tacking" Means — And Why It Matters When You Buy

One of the most important and least understood features of Texas adverse possession is the doctrine of tacking. Under Texas law, a successor to an adverse possessor can add — or "tack" — the predecessor's period of possession to their own, provided there is privity of possession between them: typically a deed, a sale, or an inheritance. The adverse possession clock does not reset every time a property sells.

Consider what this means in North Texas's active resale market. A fence built in the wrong place by the original homeowner in 2014 does not represent a fresh clock for a buyer who purchased that property in 2020. The new buyer steps into the original possessor's shoes. The clock that started in 2014 keeps running. By 2025, the possessing party has accumulated eleven years of continuous, exclusive, hostile possession — entirely across two separate owners who may never have spoken to each other about a fence.

This is exactly why title companies order surveys. This is why buyer's counsel flags encroachments before closing. And this is why a survey finding that doesn't match the fence line is never, as the Nguyens discovered, a formality. The clock you didn't know was running may have been running for years before you arrived.

The "Permission" Defense — Your Most Underused Tool

The hostility element is not only the element most often litigated — it is the element most easily managed before litigation becomes necessary. The hostile use of land without the owner's permission is the foundation of every adverse possession claim. Remove the hostility, and the claim collapses.

A written license agreement accomplishes exactly this. If your neighbor is maintaining a garden, a fence, a shed, or any improvement on your side of the property line — and you know about it and are comfortable with it — documenting that permission costs almost nothing and protects everything. A signed license agreement recorded with the county clerk puts the entire world on notice that the use is permissive, not hostile, and that the clock is not running. An oral permission is better than nothing but is difficult to prove when the original parties have moved away and the neighbor's heirs are claiming adverse possession twenty years later.

Texas courts have consistently held that a permissive use, no matter how long it continues and no matter how exclusive and open it appears, cannot ripen into title. The license converts what would otherwise be the foundation of an adverse possession claim into something closer to a formal easement — a recognized use that benefits the neighbor without threatening the owner's title.

If you ever gave a neighbor permission to use any part of your land — to park in your side yard, to maintain a fence on your side of the line, to run a utility line across your lot — document it now. The deed records will be cleaner. Your title will be more defensible. And the neighbor's grandchildren won't be able to claim that what began as a favor ended as a property transfer.

Three Things Every North Texas Homeowner Should Do Today

The counterintuitive lesson of adverse possession doctrine is that inaction is dangerous. Texas law rewards the possessor who stays active and punishes the owner who stays passive. The corrective measures are almost always cheaper in year one than in year nine:

• Get a survey when you buy — and read it carefully. Many Texas buyers waive surveys to save money or speed a closing. In a state where property lines can diverge dramatically from visible features like fences and tree lines, that is a significant gamble. A survey showing encroachments before closing lets a buyer negotiate removal, demand a title exception, or price the risk into the purchase price. A survey skipped at closing becomes a problem discovered at the next sale — often at the worst possible time.
• Document any permission you give. If you knowingly allow a neighbor to use your land — to garden across your property line, to park in your side yard, to maintain a fence that sits a few feet on your side — put that permission in writing. A signed, recorded license agreement breaks the hostility element permanently. The clock cannot run when the use has been authorized.
• Act on encroachments quickly. The moment you discover an encroachment, consult a Texas real estate attorney. The remedies available in year one — demand letters, fence removal, corrective boundary agreements — are dramatically less expensive than the quiet title litigation required to defeat an adverse possession claim that has been ripening for nine years. Speed is the property owner's greatest legal advantage.

Back to Prosper

The Nguyens' situation resolved — though not cheaply and not quickly. Their real estate attorney sent a formal demand letter asserting ownership of the disputed strip and requesting removal of the fence. The neighbors — surprised, then defensive, then assisted by their own attorney — declined to remove it voluntarily. The matter was eventually resolved through a negotiated boundary line agreement, recorded with the Collin County Clerk, that confirmed the Nguyens' ownership of the disputed fourteen-foot strip in exchange for a written license allowing the neighbors to continue using it for a defined period. The home sale proceeded. The fence remained where it was, for now, but subject to a recorded agreement that no future buyer, title company, or court would confuse with adverse possession.

The total legal cost — survey, attorney fees, negotiation, recorded instruments — was approximately $4,800. The cost of waiting another year, until the adverse possession claim had ripened to twelve years and become a matter for quiet title litigation rather than a demand letter, would have been substantially higher. The cost of doing nothing and discovering the cloud at the next sale — possibly a decade from now, with different neighbors who had no interest in a negotiated resolution — is difficult to calculate, which is its own lesson.

In Texas, the law does not protect the absent. It protects the active, the attentive, and the quick. Your fence line and your survey stakes should match. If they don't, you have a window to fix it. That window is ten years — and it runs whether or not anyone tells you it has started.

Stephan D. Hwang is WG Law's real estate attorney, serving property owners, buyers, sellers, and businesses throughout McKinney, Southlake, Frisco, Plano, and the greater DFW metroplex. Stephan has handled title matters since 2003 and brings litigation experience since 2007 to real estate disputes that demand more than a demand letter. He is admitted to the U.S. District Courts for the Northern and Eastern Districts of Texas and has argued before the Fifth District Court of Appeals in Dallas. For encroachments, adverse possession questions, boundary disputes, and quiet title matters, call 214-250-4407 or contact WG Law to request a consultation.

For related reading, see our articles on Texas property boundary disputes and encroachments, easement disputes in Texas, Texas deed fraud and title theft, and what Schedule B exceptions mean for Texas buyers. For a full overview of WG Law's real estate services, visit our real estate practice area page.

This article is provided for general informational purposes only and does not constitute legal advice. Texas adverse possession law is complex, fact-specific, and may change. The scenarios described are illustrative only. Nothing in this article should be relied upon as legal advice for any specific property dispute, title claim, or boundary matter. Consult a licensed Texas real estate attorney for guidance on your specific circumstances.