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The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are covered here, should consult lawyers about their particular circumstances.
Q. Years ago, my husband and I installed new fences on three sides of our yard, even though all of our neighbors had their own fences. Now a builder has just finished a new house behind us and nailed a new fence right to the back of our fence. I told him this was not acceptable, but he says a fence on the property line belongs to both homeowners. Is it right? If so, it doesn’t seem right.
A. Some states have laws that answer your question, but Texas doesn’t.
It appears that you are technically correct. Most likely, you built your fence on your side of the property line or possibly right on the property line. As a result, any nails that were hammered into your fence will now invade or even damage your property.
So what are you doing? If you are going to a small claims court (now known as a “judicial tribunal”), you must seek monetary damages. You can’t go to a small claims court to have the fence removed. The problem is, you are unlikely to have any financial harm. If you have extra wood on the back of your fence, your fence will likely get better, provided it is constructed to hold all of the extra weight.
To sue for the fence to be removed, you need to hire an attorney and file a lawsuit with the competent court. This endeavor will no doubt cost you thousands of dollars and is therefore financially impractical.
The builder clearly knows that there is essentially no recourse for you on this matter.
Note that despite the foregoing, there may be a local ordinance, law, or restriction that applies to where you live.
Q. My husband died seven years ago. Is It Too Late To Check Your Will? I am the named executor and I was told the time limit was four years after his death. But now I have to sell the house and both of our names are still on the certificate.
A. Under Texas law, your husband’s will can be probed more than four years after his death, as long as you, the executor of his estate, “are not in default”.
The courts have interpreted this language rather generously. The fact that you did not understand the need to examine your will is all you need to be deemed not to be in default.
Now that you need to sell your home and clear the title to remove your husband’s name from the deed, this is a sufficient excuse to miss the four year deadline to start probate.
Note that you may be limited to a somewhat simplified form of the estate called the Muniment of Title, but still find that you are now the sole owner of the house.
Ronald Lipman of the Houston law firm Lipman & Associates is certified by the Texas Board of Legal Specialization in estate planning and estate law. Email questions to stateyourcase@lipman-pc.com
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