Tuesday, December 22, 2009

Adverse Possession under the Texas Five-Year Statute

This blog entry is the third of a series related to adverse possession. Adverse possession is a legal principle under which someone can acquire ownership of real property that belongs to someone else. It is a form of “involuntary conveyance.”

The second shortest period for a claimant to assert adverse possession over real property under Texas law is five (5) years. In order to qualify for adverse possession under Section 16.025 of the Texas Civil Practice and Remedies Code, the claimant must:

* actually and visibly appropriate the property (in other words, take possession of the property in such a way that it is open and obvious);

* possess the property in a manner that consistently and unmistakably indicates the claimant asserts exclusive ownership to the property; and

* use or possess the property peacefully, but without the owner’s permission (in other words, scaring the owner off with a shotgun is not allowed), including:

(1) cultivating, using, or enjoying the property;

(2) paying applicable taxes on the property (before they become delinquent); and

(3) claim the property under a duly registered deed.

This statute does not apply in cases where a deed is forged or was executed under a forged power of attorney. It also does not apply to a “quitclaim” deed, a deed that is void on its face (because it fails to meet the legal requirements for a deed), or one obtained through fraudulent or dishonest practices. Interestingly, though, if the claimant obtained a deed that appears valid on its face and that was properly recorded, he could claim adverse possession even if the deed was executed by someone who had no actual title to or right to claim ownership to the property. For example, if you received a deed from Tom Jones which appeared to be valid, and you recorded that deed in the county’s real property records, you could assert adverse possession after five years (provided you met all of the other factors) even though Bob Smith was the real owner of the property.

There are several other statutes in the State of Texas which describe what factors must occur before a claimant can obtain title through adverse possession. As a result, adverse possession is a complex legal issue, and we strongly suggest that you seek the advice of an attorney (preferably someone versed in the litigation process, as well as real estate law) if you are confronted with either the need to assert or defend against a claim of adverse possession.