WHAT IS ADVERSE POSSESSION IN TEXAS?

Fences.jpgAdverse possession is a legal doctrine that allows a person to lawfully claim ownership to real property originally owned by another person. The statute governing the rules of adverse possession is Texas Civil Practices & Remedies Code Sec.16.021 et seq. (“CPRC”). The statute defines adverse possession as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” A person seeking to establish adverse possession must show that they actually do possess the property. The mere belief of a right to possess it is not enough. The person must also continuously possess the property for the requisite period of time and that person must peaceably and intentionally assert a claim of ownership to the property to the exclusion of the rights of the original owner. Possession shared with or with the consent of the original owner is not enough. However, the doctrine of adverse possession does not apply to public lands or against a governmental entity.

The statute sets forth rules and conditions under which the doctrine applies. These must be conclusively met. The statute is drafted in such a way as to require an affirmative act by the original owner to reclaim the property within certain periods of time. These are known as statutes of limitation. Once an owner discovers the presence of a potential adverse possessor or is otherwise put on notice of an adverse possession claim, the owner must timely act to defeat the adverse possessor’s claim within the period prescribed by one of the statutes of limitation or lose title. If the original owner is prevented from regaining possession of the property by the person claiming title by adverse possession, then owner must file what is known as a trespass to try title suit in order to reclaim possession and establish legal ownership. If the original owner does not take timely action to regain possession within the statute of limitations period, his claim of ownership of the property will be barred and the adverse possessor will considered the owner of the property.

The most commonly used statutes of limitation to establish a claim for adverse possession are sections 16.024, 16.025 and 16.026 of the CPRC.

Under Sec. 16.024 -The Three-Year Statute, the possessor must actually have title (i.e., a deed as part of a regular chain of title) or at least “color of title” which refers to a claim of title that has some reasonable basis but for some legitimate reason does not fit within the usual chain of title. So, the possessor must be able to produce some conveyance or title document to support his claim if he is to successfully assert an adverse possession claim under the three-year statute.

Under Sec. 16.025 – The Five-Year Statute, the person must cultivate, use, or enjoy the property, pay applicable taxes on the property and claim the property under a duly registered deed during there five year period. This statute does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

Under Sec. 16.026 – The Ten-Year Statute, a deed or other memorandum of title is not necessary so long as the elements of adverse possession are met. That is the person must simply cultivate, use, or enjoy the property for the ten year period. Without a title instrument, peaceable and adverse possession under this section is limited to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, the adverse possession extends to the property actually enclosed.

Two other sections, Sec.16.027 and Sec.16.028 of the CPRC, are used less frequently. The first provides a 25 year statute of limitation regardless of whether the person is or has been under a legal disability. The second allows a 25 year statute based on a title instrument, even if that instrument is void.

These statutes of limitation do not include any periods of disability on the part of the original owner (e.g., he was under 18 years old, of unsound mind, or serving in the armed forces in time of war). However, these statutes of limitation may be “tacked” or combined by various successive possessors of the property so long as there exists what is known as privity of estate or a direct legal connection between these persons.

Finally, Sec. 16.034 of the CPRC provides that the prevailing party in a suit for possession of real property may receive an award of costs and reasonable attorney’s fees.

At the Law Office of Stephen O’Rear, P.C. we help people involved in real estate disputes.