Lisa and Greg Kessler listed their home in Allen in late March of 2026 expecting a fast sale. The Collin County market was moving, the comps were strong, and they had a buyer under contract within eleven days. The closing was scheduled for thirty days out. They started packing.
Then the title company ordered a survey.
The surveyor's report arrived on a Thursday afternoon. On the second page, next to a diagram of the lot, was a notation the Kesslers had never seen before: "Wooden fence encroaches 2.9 feet onto subject property along eastern boundary." Their neighbor's privacy fence — the one that had been standing since the summer of 2016, the one they'd always assumed marked the edge of their backyard — crossed the legal property line by nearly three feet along its entire run.
The fence wasn't the worst part. The worst part was the shed.
Tucked against the far corner of what the Kesslers had always considered the neighbor's yard was a prefabricated storage structure about 12 feet by 15 feet. The Kesslers vaguely remembered watching it go up in 2016. They'd assumed it was on the adjacent lot. According to the survey, roughly 85 percent of the shed's footprint sat squarely on the Kessler property.
The buyer's lender wanted clear title. The title company wouldn't insure with an undisclosed encroachment of this size. The closing was twenty-eight days out.
And one more fact made the situation significantly more complicated: it was the summer of 2026. The fence and shed had been built in the summer of 2016. Ten years earlier, almost to the month.
Why "It's My Property" Is Not Always Enough
Most North Texas homeowners operate on a simple intuition about property rights: the land is yours, the deed says so, and anyone who puts a structure on your land without permission is a trespasser who can be made to remove it. This intuition is correct, as far as it goes. But Texas law introduces a complication that surprises even sophisticated property owners: the passage of time can change the answer.
Texas recognizes the doctrine of adverse possession — a legal rule under which a person who occupies another's land openly, continuously, and without the owner's permission can eventually acquire legal title to that land without paying for it. The doctrine is ancient, dating to English common law, and its core purpose is practical: the law prefers resolving title disputes based on current, long-standing reality rather than paper records that no longer reflect who actually uses and maintains the land.
The primary adverse possession statute in Texas is Tex. Civ. Prac. & Rem. Code § 16.026. Under that provision, a person who possesses another's land in a manner that is actual, open and notorious, exclusive, hostile (meaning without the owner's permission), and continuous for ten years can bring a trespass-to-try-title action to establish legal ownership. No deed is required. No payment to the original owner is required. The possessor simply must have used the land as if it were their own — openly, visibly, and without interruption — for a decade.
In the Texas Supreme Court's 2021 decision in Brumley v. McDuff (Case No. 19-0365), the Court reaffirmed that adverse possession claims require genuine factual inquiry and that trespass-to-try-title actions are the proper vehicle for resolving them. The dispute in Brumley involved 345 acres along the Pease River in Wilbarger County — a reminder that adverse possession is not a theoretical doctrine but a live legal issue in Texas courts.
For the Kesslers, the arithmetic was uncomfortable. The shed had been standing since summer 2016. If it had been built without the Kesslers' permission — which it had — and the Kesslers had never formally objected, demanded its removal, or taken legal action in all the years since, the neighbor was approaching the end of the statutory period. Whether a court would find all the elements of adverse possession present is a factual question only a judge or jury can answer. But the Kesslers were no longer in a position to say the issue was simple.
What Adverse Possession Actually Requires — and Where It Fails
Adverse possession sounds alarming, but it has meaningful requirements. Not every encroachment ripens into a title claim. Understanding the elements helps property owners recognize when a problem is serious and when it isn't.
Texas courts have consistently required that possession be open and notorious — visible and obvious, such that a reasonable owner inspecting the property would notice it. A buried pipe or invisible drainage modification does not typically qualify; a fence and a storage structure almost certainly do.
Possession must also be hostile — meaning the possessor is using the land without the owner's permission. This is where a critical mistake occurs: many Texas homeowners, in an attempt to be neighborly, informally tell a neighbor that a structure or fence "is fine" or "I don't mind." That casual permission, even if unwritten, can defeat an adverse possession claim by making the occupation non-hostile. It also means the clock stops running and must restart if the permission is later withdrawn. A formal license agreement — granting written, revocable permission for the encroachment — is generally the better approach when temporary tolerance is intended.
Possession must be exclusive. If the true owner continues to use the disputed strip of land — mowing it, parking on it, planting in it — exclusivity may fail, and the adverse possession period may not run.
Finally, possession must be continuous for the full statutory period. Intermittent use, even of long duration, does not satisfy the requirement.
Texas courts also distinguish between boundary fences and casual fences. In McAllister v. Samuels, 857 S.W.2d 768 (Tex. App.—Houston [14th Dist.] 1993), the court considered a nine-inch fence encroachment and found it insufficient to establish adverse possession — the fence was so minor and the encroachment so slight that it failed to put the true owner on notice of actual, visible appropriation. A three-foot encroachment along a full fence line, and a shed of nearly 200 square feet, would almost certainly not benefit from this analysis.
The Boundary by Acquiescence Doctrine
Distinct from adverse possession is the doctrine of boundary by acquiescence — also called the agreed boundary doctrine. Where two neighboring property owners are uncertain or in dispute about the exact location of their shared boundary, and where they treat a particular line (typically a fence) as the boundary for a long enough period through mutual conduct, Texas courts may recognize that line as the legal boundary even if it differs from the surveyed location.
The key distinction from adverse possession is that acquiescence requires evidence of mutual recognition — both parties treating the fence line as the boundary, not one party asserting a claim against the other. A fence that both neighbors refer to, maintain, and sell their properties by reference to may, over time, become the legal boundary regardless of what the original survey shows.
In Martin v. Amerman (2004), the Texas Supreme Court addressed a boundary dispute involving two conflicting surveys and a thirty-foot overlap — a common scenario in areas of rapid development where earlier surveys may have used different benchmarks or measurement methods. The Court clarified that trespass-to-try-title is the governing statute for resolving boundary conflicts between neighbors, and that the factual record of how the parties treated the boundary line over time is central to the analysis.
The practical consequence: a North Texas homeowner who buys a property where the previous owners treated a fence line as the boundary — and who does the same — may be inheriting not just a house but a dispute that has been silently developing for decades. The survey that arrives at closing is often the first time anyone has formally checked.
What Texas Law Requires Sellers to Disclose
Texas Property Code § 5.008 requires that sellers of residential property provide a Seller's Disclosure Notice covering known material defects and conditions affecting the property. Boundary disputes, known encroachments, and pending or threatened litigation over property lines are the kind of facts this disclosure statute is designed to surface.
The Kesslers' neighbor — the one whose fence and shed encroached on the Kessler property — would face a parallel issue if they ever decided to sell. A known encroachment onto a neighboring lot is the sort of condition that creates disclosure obligations and potential liability for concealment. This is one reason that resolving encroachments promptly, rather than letting them linger, benefits both neighboring property owners.
The North Texas Development Context
This problem is not rare in Collin, Denton, Dallas, and Tarrant Counties. The explosive residential development that has characterized the region for three decades — entire subdivisions platted and built in compressed timeframes, with lots laid out by different surveyors at different times, sold and resold through multiple owners — creates predictable conditions for survey discrepancies and encroachments to accumulate quietly.
Fences go up quickly. Sheds go up on weekends. In a neighborhood where houses were built in the same year and every lot looks roughly the same size, a two-foot error at the property line may not be visible to the eye. It is not discovered until a title company orders a new survey — often during a sale, a refinance, or an insurance event — and the survey reflects reality rather than assumption.
In a fast-growing market, these discrepancies compound. A fence built in 2006 on a wrong assumption gets treated as the boundary by the owners of both properties. Those owners sell in 2014. The next owners have no idea the fence is not on the line. They sell in 2026. The buyer's title company orders a survey. The clock, meanwhile, has been running on the 2006 fence for twenty years.
What to Do If You Discover an Encroachment
If a survey reveals that a neighbor's structure sits on your property — or that your structure sits on a neighbor's lot — the path forward depends on timing, the nature of the encroachment, and whether the relationship with the neighbor allows for a practical resolution.
Before closing on a sale or purchase: Do not allow the transaction to proceed on an assumption that the encroachment will work itself out. A buyer who purchases property with an undisclosed encroachment may find their title insurance does not cover a condition that appeared in a survey before closing. A seller who conceals a known encroachment faces post-closing liability. Have the issue formally addressed — by negotiation, written agreement, or legal action — before the deed transfers.
Negotiated resolution: Many encroachments are resolved by neighbors working out a boundary line agreement, a license agreement (written permission for the structure to remain, revocable and non-permanent), or a quitclaim deed that formally conveys the disputed strip. These agreements, to be enforceable and recordable, must be in writing, signed, notarized, and filed in the deed records of the county. An oral agreement between neighbors does not fix a title problem — it creates a new one.
Demand letter and removal: Where negotiation fails, the owner of the encroached-upon property can send a formal written demand that the structure be removed and the boundary respected. This letter does something beyond expressing displeasure: it interrupts the adverse possession clock. A demand letter from an attorney, delivered by certified mail and documented, puts the neighbor on formal notice and creates a record that the occupancy was contested — defeating the "hostile and continuous" element of adverse possession going forward.
Trespass-to-try-title action: If informal resolution fails, Texas law provides for a trespass-to-try-title lawsuit under Tex. Prop. Code § 22.001. This is the proper legal vehicle in Texas for resolving competing claims to real property. A court can adjudicate who owns the disputed strip, order removal of structures, and award damages for the trespass. The proceeding creates a final judgment that clears title and is binding on all parties.
Quiet title action: In some circumstances, a quiet title action may be appropriate — particularly where the goal is to extinguish an adverse possession claim before it matures, or to confirm ownership after a successful adverse possession period has run.
The Kesslers' Closing — and What Came After
The Kesslers retained a real estate attorney the week the survey came in. Their attorney sent a formal written demand to the neighbor and, simultaneously, reached out to the neighbor's attorney. Within ten days, the parties reached a written boundary line agreement: the neighbor acknowledged the true property line, agreed that the shed sat on the Kessler lot, and signed a quitclaim deed conveying any interest they might claim in the disputed strip. The agreement was notarized, recorded in Collin County deed records, and delivered to the title company.
The closing was delayed by eleven days. The buyer's lender accepted the recorded agreement and the title company issued a clear policy. The Kesslers closed in mid-May.
The neighbor kept the shed — by agreement, on a written revocable license that expires if the neighbor sells the property. When the neighbor eventually sells, that structure will need to be either relocated or made the subject of a new agreement with the next buyer. The encroachment did not disappear; it was managed, documented, and made into something both parties can rely on.
What saved the closing was speed. The Kesslers moved the moment the survey came back. A different family — one that tried to handle the conversation informally, one that waited to see if the neighbor would "just cooperate," one that assumed the title company would find a workaround — would almost certainly have missed the closing date and lost the buyer.
Talk to a Texas Real Estate Attorney Before the Survey Surprises You
At WG Law, Stephan D. Hwang has been handling real estate disputes and title matters in North Texas since 2007, with title experience going back to 2003. He is admitted to practice before 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. Whether you are a buyer who has discovered an encroachment before closing, a seller facing a title issue revealed by a survey, or a homeowner who suspects your neighbor's fence is not where it should be, our team can evaluate the facts, advise on your options, and move quickly when speed matters.
We serve clients in McKinney, Southlake, Allen, Frisco, Plano, and across the greater Dallas–Fort Worth metroplex. Call us at 214-250-4407 or request a consultation with our real estate team.
This article is for general informational purposes only and does not constitute legal advice. Texas real estate law, adverse possession, and boundary disputes are highly fact-specific. The scenarios described are illustrative and may not apply to your situation. Please consult a licensed Texas real estate attorney before making any decisions about property line disputes, encroachments, or title matters.