Adverse Possession: An Overview

Adverse possession refers to a process through which a person can gain legal title to real property belonging to another by possessing it for a certain length of time. While this doctrine may seem harsh at first glance (it essentially allows property to be taken away from the rightful owner), courts have justified the doctrine by noting that it encourages the efficient use of scarce resources and awards property rights to those who value it most. Typical situations involving adverse possession include property that has been fenced in by a neighbor, and property that has been abandoned for years.

The statutes governing adverse possession are found in Chapter 16 of the Texas Civil Practice & Remedies Code. Those statutes define 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.” Thus, to prove a claim for adverse possession, a claimant must establish: (1) actual possession of property; (2) that is open and notorious; (3) that is peaceable; (4) under a claim of right; (5) that is adverse or hostile to the claim of the owner; and (6) consistent and continuous for the duration of the statutory period.

Cases involving adverse possession often hinge on whether the possession is “open and notorious” and “hostile to the claim of the owner.” “Open and notorious” means that the adverse possessor must visibly appropriate the property as to give notice to others that they claim a right to the property. This can be done by filing an affidavit in the county real property records setting forth the specific basis of adverse possession. It can also be accomplished by fencing the property or making other noticeable improvements that give notice of adverse possession (e.g., building a garage or driveway over the property). “Hostility” requires that the possession must be to the exclusion of all others. In this regard, shared possession of the property with the owner is insufficient to establish adverse possession. Likewise, possessing land at the permission of the owner does not establish adverse possession.

Perhaps the most important element in establishing a claim of adverse possession is whether possession has been consistent and continuous for the duration of the statutory period. The statutory periods for establishing a claim for adverse possession depend upon the circumstances of the claim. The three most common statutory periods involving adverse possession (the three-year statute, the five-year statute, and the ten-year statute) are discussed below. Keep in mind that possession must be continuous for the entire statutory period. Intermittent possession is insufficient.

The Three-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a three-year statute of limitations for bringing suit against an adverse possessor who is possessing the property under title or color of title. This refers to a possessor who has some instrument purporting to convey title, but that in actuality does not convey title.

The Five-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.024 establishes a five-year statute of limitations for brining suit against an adverse possessor who: (1) cultivates, enjoys, or uses the property; (2) pays taxes on the property; and (3) claims the property under a registered deed.

The Ten-Year Statute – Tex. Civ. Prac. & Rem. Code § 16.025, also known as the “catch-all” or “bare possession” statute, establishes a ten-year statute of limitations for brining suit against an adverse possessor who cultivates, uses, or enjoys the land. Unlike the three and five-year statutes, the ten-year statute does not require a written instrument purporting to convey title.

Owners faced with a situation where someone is trying to adversely possess their property have several remedies at their disposal. One remedy is to peaceably remove the possessor from their property. Another remedy is to file an affidavit in the county real property records disputing the adverse possessor’s claim. Of course, the owner may also need to file suit against the adverse possessor. For their part, adverse possessors often need to file suit to gain title by way of adverse possession.

The attorneys at Curnutt & Hafer, L.L.P. have experience in dealing with adverse possession claims, having represented both adverse possession claimants as well as owners opposing adverse possession. Please contact us at (817) 548-1000 to set up an initial consultation.

*Disclaimer – This article is provided for general information purposes only and is not offered as legal advice upon which anyone may rely. Consulting a lawyer relating to your individual needs is advisable before taking any action that has legal consequences. Curnutt & Hafer, L.L.P. does not represent you unless and until it has been retained and has agreed in writing to represent you.