Good Fences Make Good Neighbors – Boundary Lines and Encroachment Agreements

house-908459_640Misunderstandings regarding boundary lines and fence locations often lead to strained relationships between neighbors. Addressing encroachment issues prior to closing can help ensure that a buyer enjoys a more fulfilling ownership experience.

It is not uncommon for fences to be situated off of a boundary line, especially in older subdivisions. In fact, an argument can be made that it is better for an owner to place a new fence slightly inside the boundaries of his/her lot, so that the neighbor has no right to dictate its location and maintenance. However, human nature dictates that if you give your neighbor an inch, they sometimes take a mile, laying claim to ownership of the strip of land between the fence and the boundary line. Their claim, while typically unenforceable, can still lead to future problems and loss of future contracts.

Who actually owns the fence, and who can control its appearance/location? The brief answer is that the fence is “owned” by the owner (or the predecessor in title) who constructed it, even if it encroaches onto the neighbor’s property. While the fence owner had no right to encroach over the boundary line, that encroachment still does not give the neighbor license to unilaterally move/destroy it. A prudent neighbor should approach the encroacher with evidence of the encroachment (such as a current survey), and reach a resolution of the matter, and head to court if necessary. But exercising a self-help remedy of forcible removal can only lead to future complications.

Typically, a meandering fence was constructed so long ago that it is unclear to either owner which property the fence belongs to. While not foolproof, the parties could rely on the appearance of the fence itself. Usually, a wooden fence owner would construct the fence in such a way that the “smooth” side of the fence faces the owner’s home, and the bracketed support beams face the neighbor. But not always, of course.

Can a property owner lay claim the extra strip of land outside his/her property line and the constructed fence? The theory of adverse possession stands for the proposition that a party who possesses real estate for a significant time can claim ownership of the land, even if they don’t have a deed to it. Although the doctrine is quite popular among those who are encroaching over a boundary line, courts are extremely reluctant to recognize such ownership, especially for platted residential lots and fence issues. And even if viable, adverse possession must be proved up in a court hearing, and a court order obtained. Without a deed or long-term tax payments on the claimed strip, the argument will typically be summarily dismissed.

A prudent buyer under contract to buy a home subject to an offset fence would be prudent to require an agreement from the neighbor as to the property line and rights to move and maintain the fence before closing on the transaction. These encroachment agreements can go a long way to avoid future buyer’s remorse.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Tenant Evictions – a Time Consuming Process

hand-101003_640If you clients are faced with the need to evict a tenant, they should know that the process must be undertaken in strict adherence to the Texas statutes, and may take longer than expected. If a tenant knows how to play the game, they could stretch out the ordeal for well over a month before possession is finally obtained.

The job of a landlord is never easy, but perhaps the most difficult task most landlords face is retaking possession of a property after a tenant default or lease expiration. The Texas statutes are very precise in outlining the requirements an evicting landlord must follow.

It’s important to understand that for residential tenancies, a landlord cannot simply lock out the tenant and haul off their possessions. A landlord must first properly terminate the right to possession in accordance with the terms of the lease, and then send a three-day written notice of termination before an eviction suit can be filed. Once an eviction suit is filed in the appropriate court, a minimum of six days must pass before a hearing is held. Assuming the landlord is successful at the hearing, a judge will not issue a writ of possession until five additional days expire, during which the tenant may appeal. And after the writ is finally issued, a constable will post an eviction notice on the premises, giving typically three more days before a locksmith and moving crews can show up to physically remove the inhabitants and belongings. All in all, an eviction will take a minimum of 20 days or so after lease termination, and if an appeal is filed, the process can be extended for months. Ultimately, a landlord will often retake possession from an extremely agitated and disgruntled tenant, who may vacate the property in less than pristine condition.

A prudent property owner should understand the inherent risks involved with rental property, and conduct appropriate credit checks and due diligence on any prospective tenant before agreeing to turn over possession to such a valuable asset.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Condominiums – Ownership of Airspace, and More

condominium-690086_640A condominium represents a completely different animal from its cousins the duplex and the townhome. Differing contract forms and due diligence considerations make a condo deal a bit more sophisticated. A clear understanding of condo regimes will help facilitate a smooth condo transaction.

Residential condominiums differ in concept from all other real property interests. Typically, an owner of a lot owns all rights below, at and above the surface of the property. Ownership extends from the center of the earth up to the heavens above, subject of course, to other rules, laws and easements (for instance, although you may own air rights to the heavens above the surface of your lot, allowing you to build multi-story buildings on your lot if zoning permits, an airplane has a right to cross your airspace pursuant to federal and international law). So if title to property is held and described according to plats and surveys of the surface, how can one owner take ownership of a unit above the unit of another?

The answer lies in the concept of a condominium regime. If an owner of a parcel of land files the necessary paperwork to create a condominium regime, then he or she can build a structure on the land and carve up ownership in that structure into separate units, which may or may not be stacked on top of each other. In essence, it allows a property owner to carve up the airspace above the surface, and sell that airspace separately. A prospective owner of a condo unit must understand that they will not purchase the land underneath the structure; they will be purchasing the interior space of a unit within the structure, typically with a percentage interest in all the common areas shared with other condo owners. The purchaser must read and understand all the rules and regulations of the condo regime which govern the shared ownership of the property and structure.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved