DAVID J. WILLIS ATTORNEY
Copyright © 2013. All rights reserved worldwide.
Adverse Possession in Texas
by David J. Willis J.D., LL.M.
Adverse possession refers to the circumstances under which one may lawfully lay claim to ownership of property not originally one´s own. 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." Case law adds that it must be true that the possessor of the property actually does possess it (the belief of entitlement to possess is not enough), has possessed it continuously (sporadic possession is not sufficient), and that he peaceably and intentionally asserts a claim of right adverse to and exclusive of all others.
It is not enough to be merely caring for property temporarily, or even paying the taxes on it, until the owner reappears. Possession shared with the original owner is insufficient.
So you want to make an adverse possession claim to the "West 40 acres north of the railroad tracks?" Not good enough. You must have a proper legal description (lot and block or metes and bounds) in order to make the strategies outlined in this article work effectively.
The location of any tract of land that is the subject of an adverse possession claim must be determinable with reasonably certainty. It must have boundaries. This may necessitate a survey, especially in the case of rural property. One alternative is to obtain such a survey first and then file an Affidavit of Adverse Possession with the survey attached as an exhibit; another option – if it is urgent to put an instrument on record immediately – is to file the Affidavit with the property description as it is currently available and then later amend the Affidavit to include the full metes and bounds (i.e., file a "First Amended Affidavit of Adverse Possession").
Strict Rules Apply
The adverse possession rules are specific for a reason. As the Texas Supreme Court stated, the adverse possession "doctrine itself is a harsh one, taking real estate from a record owner without express consent or compensation." Tran v. Macha, 213 W.W.3d 913,914 (Tex. 2006). The statute sets forth rules and conditions under which the doctrine applies. These must be conclusively met. Close enough is not good enough. In the event adverse possession is litigated, all of these issues become questions of fact to be decided by a court.
The statute is structured in such a way as to require an affirmative act by the original owner to reclaim the property within certain periods of time, referred to as statutes of limitation. If the original owner is prevented from taking the property back, then he or she must file a trespass to try title suit in order to establish legal ownership and reclaim possession. If the original owner does not act, then his claim is barred, and the adverse possessor prevails. Note that the doctrine of adverse possession does not apply to public lands or against a government entity.
The Various Statutes of Limitation
The law of adverse possession is based on notice along with the opportunity to respond to that notice. 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.
Note that the burden here is on the owner. Once an owner discovers the presence of a potential adverse possessor or is otherwise put on notice of an adverse possession claim, he or she must take action to defeat the adverse possessor´s claim within the period prescribed by one of three statutes of limitation – or lose title. These are:
Sec. 16.024 – The Three-Year Statute
A person [i.e., the original owner] must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.
Under this section, 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/title paperwork to support his claim if he is to assert adverse possession within the three-year statute.
Sec. 16.025 – The Five-Year Statute
(a) A person [i.e., the original owner] must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:
(1) cultivates, uses, or enjoys the property;
(b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.
Under this five-year statute, some sort of deed of record is still required.
Sec. 16.026 – The Ten-Year Statute (Nicknamed the "Bare Possession Statute")
(a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
(b) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.
(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor's claim extends to the boundaries specified in the instrument.
The ten-year statute is the "catch all." A deed or other memorandum of title is not necessary so long as the elements of adverse possession are met – however, such documentation may be useful to establish the boundaries of the claimed tract. Otherwise the key to determining boundaries may be that which is fenced in as a "designed enclosure" – not just a "casual fence." Rhodes v. Cahill, 802 S.W.2d 643,646 (Tex. 1990).
Two other sections, Sec.16.027 and Sec.16.028, are less commonly used. 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 on its face or in fact.
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).
Statutes of limitation may be "tacked" or combined by various successive possessor of the property so long as there exists "privity of estate" (a direct legal connection) between these persons.
What sort of action should the owner take to defeat a claim of adverse possession? The most obvious course of action is to physically displace the interloper (if that can be accomplished peaceably) or file a suit for forcible detainer. If neither is effective, or if the adverse claimant asserts a title claim, then the owner's remedy is litigation in the form of a "trespass to try title" action requesting a declaratory judgment.
Litigation by the Adverse Possessor
Alternatively, an adverse possessor may be the one to file suit to establish his claim. To do so, he must prove (1) a visible appropriation and possession of the land, sufficient to give notice to the record title holder that is (2) peaceable, (3) under a claim of right hostile to the title holder´s claim, and (4) that continues for the duration specified in the applicable statute. What is a "visible appropriation?" The possessor must "visibly appropriate the property as to give notice to any other person that they claim a right to the property." Perkins v. McGehee, 133 S.W.3d 291, 292 (Tex.App. – Forth Worth 2004, no pet.). Many people accomplish this by fencing the property and asserting dominion over it.
Finally, Sec. 16.034 provides that the prevailing in a suit for possession of real property may receive an award of costs and reasonable attorney´s fees.
Creative Approaches: The Affidavit of Adverse Possession
What should an adverse possessor do who believes that one of the above statutes of limitation allows him to claim ownership? The first and best option is to file suit for a declaratory judgment in district court. However, if a lawsuit is not an affordable option, a good second choice is to file an "Affidavit of Adverse Possession" in the real property records which contains specific wording asserting a claim of ownership by adverse possession. Such an Affidavit acts as a marker that commences the process of putting the world on notice of an adverse possession claim, thereby providing a fixed point for the running of applicable statutes of limitation. As the Affidavit matures over time it may gradually acquires increased credibility.
Note that it is possible to file an Affidavit before the applicable statute of limitation has fully run. The Affidavit may assert a date when adverse possession commenced (which may be a date years in the past) and state that should current circumstances continue and should the entire limitations period run, then the claimant will become the sole fee simple owner.
As part of the Affidavit process, it is a good idea to research the title to determine if there are known owners who can be located. Title companies will issue a relatively inexpensive title report, or an online service such as TitleSearch.com can be used. The title report can provide useful information in drafting the Affidavit. If the title report reveals owners of record that can be located, a potential adverse possession claimant might be better advised to contact them and attempt to make a deal that preserves the existing chain of title.
If heirs exist (whether they can be found or not), then an Affidavit of Adverse Possession may be combined with an Affidavit of Heirship – entitled "Affidavit of Heirship and Adverse Possession." The heirship portion of the hybrid Affidavit should include a recitation of family circumstances along with a statement of who the heirs are believed to be (as determined in light of Probate Code Sec. 52). The adverse possession section would then make the usual assertions as to actual and peaceable possession, etc. Three disinterested witnesses should sign, as is customary with Affidavits of Heirship.
Adverse Possession in the Case of Cotenant Heirs
It makes for an interesting case when an adverse possessor intends to stake his claim against family members in an heirship situation – for example, a son wants to claim the family farm after his parents died without wills and his siblings have long since disappeared. Senate Bill 473 (introduced in 2011) would have added Sec. 16.0265 Civil Practice & Remedies Code to address the situation of adverse possession against a "cotenant heir." Although SB 473 passed in the Senate, it did not pass in the House of Representatives. So, for now, adverse possession against cotenant heirs is accomplished in the same manner as against any other persons.
Generally, a co-tenant (legal term for co-owner) may not adversely possess against another co-tenant unless the claimant clearly "repudiates" the title and is claims to be holding adversely to that title. Dyer v. Cotton, 333 S.W.3d 703 (Tex.App.– Houston [1st Dist. 2010, no pet.). Also, an Affidavit of Adverse Possession, or a deed based on adverse possession, puts co-tenants on notice of an AP claim only if that instrument was recorded prior to the other co-tenants acquiring their interest.
Clients routinely inquire about payment of back taxes on land they want to adversely possess. "Should we pay the taxes?" they ask. Well, yes; otherwise the taxing authorities will eventually conduct a tax sale and the property will be acquired by someone else. Clients also ask "Can you guarantee that if I pay the taxes I won´t lose my money?" The answer is of course no. Firstly, lawyers never guarantee anything; secondly, it is always possible that the true owner of the property will appear and demand possession. If that occurs, then the client has essentially made a gift to that person by paying back taxes.
The Affidavit of Adverse Possession is a creative device that is inexpensive and often effective. The process is not, however, without a measure of uncertainty.
Creating a New Chain of Title
As an additional creative step, the Affidavit of Adverse Possession can be followed by a deed to the subject property out of the adverse possessor (e.g., to a third-party trustee) and then another deed back from the trustee into the name of the adverse possessor. The objective is to give the adverse possessor an actual recorded deed in his own name – i.e., to create a new chain of title. These deeds should also contain specific and appropriate language pertinent to adverse possession, with the ultimate goal being to make title in the adverse possessor pass muster with a title company.
Note that this approach is designed to allow the adverse possessor to obtain credibility of title over a period of time. Using this method does not usually produce instant results and therefore is not suited for those who want to adversely acquire property and then flip it.
Do-it-yourselfers beware. These transactions should be handled only by a capable real estate attorney in order to avoid doing more damage than benefit when it comes to the adverse possession claim.
Remedies for the Record Owner
What should an owner do who is put on notice that someone else is making a claim of adverse possession? There are a couple of options, but it is important to note that doing nothing is not one of them. Doing nothing makes it likely that the statute of limitations will eventually run and the claimant will succeed in acquiring legal title. One possibility is to file an opposing affidavit in the real property records expressly rejecting the adverse possessor´s claim; in certain circumstances this may be enough to end the matter. Otherwise, the only safe course of action is for the owner to seek a declaratory judgment from a district court.
What does the attorney need from the client?
Circumstances vary, of course, so the client should explain to the attorney the nature of his or her adverse possession of the subject property. Have they fenced it? Do they mow and maintain it? Pay taxes on it? The client should also be prepared with a proper legal description of the property – lot and block or metes and bounds. A copy of the last recorded warranty deed is useful in this respect. It does little good to make an adverse possession claim if the boundaries of the claimed property are uncertain. In many cases, the client is best advised to get a survey before proceeding. Finally, if case involves potential heirs, and the best strategy is going to be the filing of a hybrid affidavit of adverse possession and heirship, then the client will need to do some research on who the heirs are and where they can be found. Obtaining a title report from a title company is a good idea.
A Note on Illegality
This office is regularly approached by persons who wish to undertake a campaign of asserting adverse possession as to properties (sometimes dozens of them) that they perceive to have been "abandoned," e.g., foreclosed houses owned by lenders that may currently be sitting idle. The statute does not contemplate or condone the use of the adverse possession rules as a "business plan" for aggressive investors. In fact, such a strategy expressly involves breaking and entering, filing false affidavits, slander of title, and fraud. Accordingly, district attorneys in Texas have begun prosecuting such offenses. No reputable attorney will assist a client in taking such actions.
Information in this article is proved for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is retained and agrees in writing to do so.
Copyright ©2013 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his web site, http://www.LoneStarLandLaw.com.