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.

Adverse Possession under the Three-Year Statute

This blog entry is the second 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 shortest period for a claimant to assert adverse possession over real property under Texas law is three (3) years. In order to qualify for adverse possession under Section 16.024 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;

* 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); and

* hold the property under title or “color of title.”

The key to the three year statute for adverse possession is the final factor listed above. In other words, the claimant must have received (1) a deed or other document reflecting title to the property, but his title is considered “irregular” because there is a document that is missing or has not been properly recorded, or (2) an unusual document, such as a certificate of headright, land warrant, or land scrip.

If all of these three things occur, the statute requires that the true owner to the property take action by bringing a lawsuit to recover the property within three years from the date that the claimant first enters the property, or else he will lose his ownership rights. In actuality, however, a title insurance company or buyer will likely request that the claimant sue the rightful owner or presumed owners and obtain a judgment reflecting title through adverse possession before they will agree to purchase the property from the adverse claimant.

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.

What is Adverse Possession and When Can It Help Me?

This blog entry is the first 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.”

Adverse possession is defined by statute 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.” In other words, a person who does not hold title to real property can peaceably enter upon property owned by someone else and undertake actions (such as use of the property) that are inconsistent with and adverse to the rights of the property’s true owner. If the property’s rightful owner does not diligently attempt to stop the adverse claimant, he may find it difficult to transfer title to his property or even find that he has lost his ownership rights.

Adverse possession can be useful in a variety of situations which are more common than one might expect. For example, if land is occupied or operated by descendants even though title to the property was not transferred through probate from a deceased relative and probate is no longer an option, it may be possible to “clear title” through adverse possession. Adverse possession may be one way to obtain clear title in boundary disputes, such as when a surveyor has discovered that a fence or other structure has not been properly placed along the dividing line between two neighboring properties.

There are several statutes in the State of Texas which describe what factors must exist (and for how long) 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.