This Land is Your Land, This Land is My Land – Adverse Possession in Texas
Legitimate adverse possession claims are uncommon. Adverse possession is a situation in which a person can lawfully claim ownership of real property not originally belonging to that person through typical means such as purchase or inheritance. The Texas statute governing adverse possession 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 legitimacy of an adverse possession claim is established when circumstances are such that it is visible to others–meaning others are or should be on actual notice that the possessor is asserting a claim of right to the property which is actual, open, notorious, exclusive, adverse, hostile, continuous, and uninterrupted for the applicable statutory period. The determination on these factors is left to a court to decide. Classic examples are (1) a family living next to an empty lot which they use as their own or (2) a farmer who fences in an adjacent tract to farm or graze cattle.
Somewhat oddly, the burden here is on the owner of the property at issue. Once a property owner discovers the presence of a potential adverse possessor or is otherwise put on notice of a claim, they must act to defeat the claim within the period prescribed the applicable statutes of limitation.
|3 Year Statute – CPRC §16.024||This section is applicable when possession occurs under “color of title”, meaning the claimant has a written deed actually purporting to convey title but has some type of defect (e..g in the property description) such that title is not actually conveyed.|
|5 Year Statute – CPRC §16.025||This section is applicable when the claimant has (a) cultivated, enjoyed or utilized the property (b) paid the property taxes, and (c) possess a registered deed.|
|10 Year Statute – CPRC §16.026||This section is applicable when the claimant has cultivated, enjoyed or utilized the property but does not have any title instruments. Depending on the situation, the applicability of this statute can be limited to tracts of 160 acres or less unless there is documentation to establish fenced boundaries.|
|25 Year Statute – CPRC §16.027 and §16.028||This section is applicable with regards to (a) removing any consideration of a disability which otherwise would toll the statute and (b) effectively countering any defense that a title instrument is void.|
What should you do if you feel you have a claim to land that you do not have record title to? Real estate lawyers are regularly approached by persons who wish to undertake a broad operation of asserting adverse possession as to properties they feel have been “abandoned”, such as foreclosed houses sitting idle or empty lots. Texas laws do not envision or endorse the use of adverse possession rules in this manner and in actuality, this approach would likely involve criminal aspects such as filing false instruments, fraud and/or slander of title. Thus, district attorneys have been known to frequently prosecute such offenses. No reputable attorney would knowingly assist a client in such an endeavor. However, if an individual has a defensible, honest claim, there are proper steps your attorney can assist you with to document that claim.
What should you do if you have been put on notice regarding a claim for adverse possession of your land? There are a couple of options involving certain affidavits and law suits, but doing nothing is not a good option. If the statute of limitations runs out, the claimant will succeed in acquiring legal title. This position especially requires an experienced real estate attorney who will help preserve the legal rights you have in your property.
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