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Adverse Possession by R. Scott Alagood

Hardly a month goes by without our office getting a call from someone who either claims they have acquired or possibly lost title to real estate through “adverse possession”. Some states other than Texas refer to these types of claims as “squatter’s rights”. Texas does not favor taking title from a legal holder and simply transferring it to one who has little or no evidence of actual ownership. However, in certain limited circumstances, a court of law will allow a party in actual and peaceable possession of land to obtain superior rights against the legal title holder of that land.

The basis of the doctrine of “adverse possession” lies in two public policies. The first policy favors the free and uninterrupted use of land by a party in possession. The second policy encourages legal title holders to take action within a reasonable time to oust a part in unlawful possession of land he owns. Otherwise, the legal title holder will be barred from enforcing his ownership rights.

Adverse possession typically involves boundary line disputes, implied easements for ingress and egress, and situations where the parties attempt to transfer title to real estate but fail to properly document the transaction or the document gets lost or destroyed over time.

The elements of an adverse possession claim or “title by limitations” claim depend on which Texas Civil Practice & Remedies Code (TCPRC) section applies. Title by limitations generally means that a party who is not the record title holder has continuously remained in open possession of a particular tract of land for a specific period of time without being ousted, either physically or through the filing of a lawsuit, by the legal title holder. There are three sections of the TCPRC which contain limitations periods of three, five and ten years, and also three sections which have 25-year limitation periods. Each section contains certain elements which are common with the others as well as other specific elements which must be proven to establish title by “limitations” or “adverse possession.”

The common elements which must be proven in order to establish such a claim are as follows: (1) visible appropriation and possession of the land, sufficient to give notice to the legal title holder, that is (2) peaceable, (3) under claim of right hostile to the legal title holder’s claim, and (4) that continues for the duration specified in the applicable statute.

As previously stated, each particular section will require additional elements beyond those described herein. However, neither knowledge of the rights of the legal title holder nor any intent to dispossess the legal title owner of the real property are required elements of an adverse possession claim. An adverse possession claim must be established by the strength of the claimant’s title (veracity and accuracy of the proof of each element of the applicable limitations statute) and not on the weakness of the record owner’s title (or lack of evidence thereof). There are no presumptions favoring an adverse possession claimant. An adverse possession claim is typically a question of fact not law.

To establish a claim by adverse possession, a claimant must enter the land which a claim of right inconsistent and hostile with that of another person. According to TCPRC section 16.021(1) a “claim of right” is defined as the claimant’s intention to appropriate or claim the land as his or her own. Such claim of right may be established by a public declaration of the claim or by visible and apparent acts. The verbal assertion of a claim is not necessary.

If the appropriation and possession of the land was done through permission or with the consent of the legal title holder, then such will not suffice to establish adverse possession.

Adverse possession cannot be established where the claimant recognizes that another person holds title to the land or has offered to purchase the land from the legal title holder in such a way that would show that the claimant admitted that the legal title holder is the real owner.

While each of these elements also have sub-parts or sub-factors which need to be considered, the above represents the basic elements associated with an adverse possession claim.

Scott Alagood is board certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at [email protected] or www.dentonlaw.com.