Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of it for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in Texas by adverse possession and, more importantly, how to prevent this from happening to your land.
Adverse Possession Law in Texas
“Adverse possession” is defined in Texas 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.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1).
To obtain title by adverse possession, the possession of the land must be actual, visible, continuous, notorious, distinct, hostile, and of such a character as to unmistakably assert a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643 (Tex.1990).
How to Prove Adverse Possession in Texas
A person who seeks to establish title to real property by adverse possession in Texas must prove the following:
- (1) actual and visible appropriation of land;
- (2) possession of the land that is adverse and hostile to the claim of the owner of record title;
- (3) possession of the land that is open and notorious;
- (4) possession of the land that is peaceable;
- (5)possession of the land that is exclusive; and
- (6) possession of the land that involves continuous cultivation, use, or enjoyment for ten years. Glover v. Union Pac. R.R. Co., 187 S.W.3d 201 (Tex. App. 2006).
Not proving even one of these elements will defeat an adverse possession claim.
Here is what the courts in Texas have said about each one of the elements necessary to establish adverse possession:
1. Actual Appropriation
The element of actual appropriation requires the person claiming adverse possession to visibly take the property as his own to give notice to any other person that they claim a right to the property. Parker v. McGinnes, 842 S.W.2d 357, (Tex. App. 1992).
2. Adverse and Hostile to The Claim of The Owner of Record Title
The person claiming adverse possession must go onto the land and possess it in such a fashion as to “indicate unmistakably an assertion of a claim of exclusive ownership” of the land. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990)
The test for “hostility” is whether the acts performed by the claimant on the land and the use of the land were of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Winchester v. Porretto, 432 S.W.2d 170, 174-75.
“Hostile” use does not require an intention to dispossess the rightful owner. But there must be an intention to claim the property as one’s own to the exclusion of all others. The mere occupancy of land without any intent to appropriate it will not support a claim for adverse possession in Texas. Ellis v. Jansing, 620 S.W.2d 569, 571 (Tex.1981).
3. Open and Notorious
The “open and notorious” element of adverse possession is met when the person claiming adverse possession exercises “visible acts of ownership on the disputed property. Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex. 1954).
Possession is “open and notorious” when it is the use the usual owner would make of the land. The adverse possessor’s occupation of the land must be sufficiently apparent to put the actual owner on notice that a trespass is occurring.
Example: A Cable Company runs a cable under Landowner’s land, and there is no indication of the cable’s existence from the land’s surface. The Cable Company cannot gain title by adverse possession because there is nothing to put the Landowner on notice of the trespass.
4. Peaceful Possession
“Peaceable possession” is defined as “possession of real property that is continuous and is not interrupted by an adverse suit to recover the property. Natural Gas Pipeline Co. of America v. Pool, 124 SW 3d 188 (Tex. 2003)
5. Exclusive Possession
“Exclusive possession” means that the possessor is not sharing the land with the actual owner or the public. This requirement does not prevent two or more people from working together to obtain title by adverse possession. If they do so, they will get the title as tenants in common.
Example: Ann and Bob are next-door neighbors. They decide to plant a Christmas tree farm on 20 vacant acres behind both of their homes. Ann and Bob share expenses and profits from the Christmas tree farm. If all other elements for adverse possession are present, at the end of the ten years, Ann and Bobb will own the lot as tenants in common.
A co-owner may not adversely possess land against another co-owner unless the person claiming adverse possession clearly repudiates the title and claims to be holding adversely to that title. Dyer v. Cotton, 333 S.W.3d 703 (Tex. App. 2010).
In addition, a cotenant claiming adverse possession against another cotenant must affirmatively show that all other cotenants have been ousted from the property. Villarreal v. Guerra, 446 S.W.3d 404 (Tex. App. 2014).
Joint use is insufficient because “possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990).
“[T]he possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rick v. Grubbs, 147 Tex. 267, 270, 214 S.W.2d 925, 927 (1948).
6. Continuous Cultivation, Use, or Enjoyment of Such Land For Ten Years
The adverse claimant’s possession must be continuous throughout the ten-year period. “Continuous possession” requires only the degree of occupancy and use the average owner would make of the property.
Texas courts have held that intermittent occupancy periods generally are insufficient to establish “continuous” possession. Feinstein v. McGuire.
However, constant use by the claimant is not required as long as the possession is of the type the usual owner would make of the property.
Temporary absence from the land without an intention to abandon possession will not break the continuity of possession. Feinstein v. McGuire.
There also does not need to be ten years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire ten-year period with the result that the final adverse possessor gets title to the land. Tex. Civ. Prac. & Rem. Code § 16.023.
Texas Limits The Amount of Land That Can Be Obtained Through Adverse Possession
Texas Civ. Prac. & Rem. Code § 16.026 limits adverse possession to not more than 160 acres, including improvements or the number of acres actually enclosed if this exceeds 160 acres.
Does a Person Have to Pay Taxes to Acquire Adverse Possession?
On a ten-year adverse possession claim, Texas does not require the adverse possessor to pay taxes on the property. However, payment of property taxes is good evidence of adverse possession.
Is a Title Obtained Through Adverse Possession a Good Title in Texas?
When title by adverse possession is perfected in Texas, the ownership in the land is as valid as can be held under any other character of title. To obtain a perfected title by adverse possession, you must get a final adjudication by a court.
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in Texas if you have any concerns related to adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.