Adverse possession in Texas refers to the method by which a person gains legal title to the land of another by possessing it for a certain amount of time. This article provides a brief overview of the elements of adverse possession in Texas. If you believe you have a claim of adverse possession or are facing a claim of adverse possession, contact Houston Real Estate Attorneys Beard & Lane for an evaluation of your case. The lawyers at B&L are experts at adverse possession and have overseen dozens of adverse possession cases and can help you with yours.
The Five Elements of Adverse Possession in Texas
Texas law contains four distinct statues with regard to adverse possession but each contains similar elements. The Texas Civil Practice & Remedy Code §16.021(1) defines a claim of 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.” Basically this requires:
(1) Actual possession of property;
(2) That is open and notorious;
(3) That is peaceful;
(4) That is adverse or hostile to the owner’s claim to the property; and
(5) Continuous for the relevant statutory period.
While it is said that “possession is 9/10 of the law”, the elements make clear that possession is not all that is required. Instead the law requires possession that is directly adverse to the property owner’s rights and that is done in a way that puts them on notice of the adverse possession. For example, a tenant who possesses an apartment subject to a lease or an individual who possesses land at the permission of the owner would not be in adverse possession of that property.
The Three, Five, Ten, and Twenty-Five year Statutes of Limitation in Texas
Once the above mentioned elements are met, the claimant must then show the possession was continuous for the relevant amount of time. The Texas Civil Practice and Remedies Code contains four primary statutes of limitation. Which statute applies depends on the nature of the possession.
- The Three Year Statute (Tex Civ. Prac. & Rem. Code. § 16.024) is applicable in situations where the possession occurs under title or “color of title.” Possession under title requires that the possessor have some form of deed or other written instrument that actually conveys title. A person who possesses land under “color of title” has an instrument that purports to convey title but, due to a defect, does not actually convey title.
- The Five Year Statute (Tex Civ. Prac. & Rem. Code. § 16.025) is applicable in situations where the possessor of the land (1) cultivates, enjoys, or uses the property, (2) pays taxes on the property, and (3) claims the property under a registered deed.
- The Ten Year Statute (Tex Civ. Prac. & Rem. Code. § 16.026), often referred to as the “bare possession” statute, only requires that the possessor cultivate, use, or enjoy the land. Unlike the three and five year statutes the ten year statute does not require a written instrument conveying title. The ten year statute, with some exceptions, is only applicable to property consisting of less than 160 acres.
- The Twenty Five Year Statute (Tex Civ. Prac. & Rem. Code. § 16.028) requires only that the possessor have a recorded instrument purporting to convey title, even if the instrument is void. Note, however, that the possessor must still act in good faith so they may not, for example, forge the instrument.
It is also worth mentioning that, generally speaking, the statutes do not begin to run if the true owner of the land is disabled, a minor, or serving in the military.
Asserting or Defending Against an Adverse Possession Claim
An adverse possessor who has met and can prove the requisite elements of a claim may file a suit to establish title. Of primary concern in filing a suit is proving that the true owner of the property was on actual or constructive (legally implied) notice of the adverse possession, and that the possession occurred for the duration of the statutory period. An effective way to establish both notice and the expiration of the statute of limitations is to file an affidavit of adverse possession in the county property records where the property is located. This affidavit can both establish the date on which adverse possession began and places the owner on notice of possession.
A property owner faced with the threat of an adverse possession claim has a number of options to defend against such a claim. The simplest method is to peacefully remove the claimant from possession of the property prior to the expiration of the applicable statutory period, thus terminating the continuous use of the property. If physical removal is not an option, a property owner can file suit prior to the expiration of the applicable statutory period and end the possession.
It should be noted that successful claims of adverse possession in Texas require a strict adherence to these elements, the cases that interpret them, and local rules. This article provides only a general overview of this complex area of the law. It is advisable that anyone seeking to make a claim of adverse possession or have an adverse possession lawsuit pending against them seek the advice of a real estate lawyer to evaluate their claim.
Sources
17-250 Dorsaneo, Texas Litigation Guide § 250.01-03
http://www.farrensmith.com/ Retrieved February 12, 2014
http://www.lonestarlandlaw.com/ Retrieved February 12, 2014