Understanding Adverse Possession in Texas

Land ownership in Texas is generally established by physical title, i.e. a deed. But it is legally possible to gain ownership of land through a legal principle known as adverse possession
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Land ownership in Texas is generally established by physical title, i.e. a deed. But it is legally possible to gain ownership of land through a legal principle known as adverse possession.

This is sometimes colloquially known as “squatter’s rights,” but it actually encompasses a variety of methods for gaining legal title to real estate in the absence of a written conveyance.

Defending Against a “Hostile” Claim to Your Land

Texas law 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.”

The use of the word “hostile” should not be misunderstood. Adverse possession requires a trespasser to occupy real property without the permission of the owner. It is “hostile” to the rights of the owner. It is not necessary for the trespasser to have any hostile intent towards the owner.

In fact, in many cases adverse possession occurs without either party realizing it. This often happens in cases involving disputed property boundaries. For example, earlier this year a Texas appeals court affirmed an adverse possession judgment in a case from Houston. The plaintiff and the defendants owned neighboring lots in Harris County. Back in the 1940s, the defendants’ great aunts, who originally owned their lot, made improvements to a preexisting shed on the lot. The defendants–the current owners–later tore down the shed and constructed a fence and driveway in its place.

The shed and the defendants’ subsequent improvements were legally part of the neighboring lot. The plaintiff filed suit, asking a jury to order the defendants to remove their “encroaching” fence and driveway. The jury returned a verdict for the defendants, finding they had lawfully acquired title to the disputed boundary through adverse possession.

The Texas 1st District Court of Appeals upheld the jury’s decision. Among other things, the court noted that “mistaken belief of ownership can be sufficient for adverse possession,” even if there was no active border dispute between the previous owners. The court also pointed to the great aunts’ gardening–they planted sunflowers in the disputed area, as well the more “obvious” improvements they made to the shed, as “evidence of intent hostile to everyone else’s use.”

How Long Does It Take to Establish Adverse Possession?

The case above discusses an adverse possession that originated more than 70 years ago. But how long does a trespasser actually have to occupy real property before they can claim it under adverse possession? The answer is somewhat complicated in Texas, which applies different time limits based on the circumstances of the situation.

Section 16.024 of the Texas Civil Practices & Remedies Code states that an owner must file a suit to recover their property from a trespasser within three years when said possession is based on “title or color of title.” In other words, if the trespasser mistakenly believes they own the property due to an incorrect deed, the owner has three years from the discovery of the mistake to act. After three years, the trespasser can sue to claim the property under adverse possession.

However, under Section 16.025, adverse possession may be established after five years if the trespasser meets all three of the following requirements:

  1. The trespasser “cultivates, uses, or enjoys the property” in some way;
  2. The trespasser pays property taxes on the land claimed; and
  3. The trespasser actually claims the land “under a duly registered deed.”

Finally, under Section 16.026, adverse possession may be established after 10 years even without making any tax payments or having mistaken title. The trespasser must still be using the land in a manner that is “hostile” to the owner’s interests. And a claim under this ten-year rule may not be used for any parcel of land larger than 160 acres.

It should also be noted that adverse possession only works against private landowners. You cannot acquire any land from the State of Texas or any municipal subdivision through adverse possession. Even if you actively occupy and use public land for more than 10 years, no court will grant you ownership.

Are You Involved in a Dallas Adverse Possession Dispute?

Adverse possession is a complicated area of the law. Many times it comes up as the result of errors or mistakes that occurred decades earlier. That is why if you find yourself involved in a boundary or property dispute where adverse possession may be an issue, you need to work with an experienced Dallas real estate litigation attorney who can advise you of your options. Contact Lindquist Wood Edwards LLP today at 214-382-9789 to talk to a lawyer now.

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