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Adverse Possession in Texas

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Real estate law is about more than buying, selling, and renting. There are a number of unusual and archaic features to Texas real estate law, including little-known pathways to obtaining property rights. Under certain circumstances, parties who “squat” on unclaimed property may actually have a venue for legal ownership. Below, our seasoned real estate and business law attorneys discuss the legal concept known as “adverse possession” and explore how it works under Texas law. Reach out to a Houston real estate attorney with additional questions or for help with a Texas real estate or business law matter.

What is Adverse Possession?

Adverse possession is a long-standing legal doctrine pertaining to property ownership. Under normal circumstances, a party must have a written document to prove their ownership of a plot of land. Landowners must have a deed or conveyance, properly recorded with county or state officials, demonstrating that they lawfully own the property. Adverse possession is a very limited exception to that general rule, providing a means to obtain land without written proof of intentional conveyance.

Adverse possession is a legal concept that essentially allows a trespasser (a stranger, neighbor, or other party who does not legally own a plot of land) to obtain legal ownership over a piece of real estate that was not originally their own. Developed in early British jurisprudence and rare in modern times, adverse possession now generally covers situations in which the owner of a piece of real estate has forgotten about or otherwise abandoned property while another party has been using or caring for the property for so long that requiring that party to leave the property would create hardship. After sufficient time has passed, the person using or taking care of the land can petition the court to give them ownership or title over the land without the owner’s permission.

How Does Adverse Possession Work in Texas?

Legitimate claims of adverse possession are rare. No single Texas statute lays out precisely what is required to claim adverse possession, but the courts have developed a test applying several important factors, each of which must be satisfied for an adverse party to claim rights to a piece of property.

Texas courts require that, in order to claim property by adverse possession, the trespasser’s possession must be:

  • Hostile. The trespasser must be possessing the land against the rights of the true owner and without permission. If a person is renting property or staying with permission from the owner, for example, then they cannot claim adverse possession.
  • Actual. The trespasser must exercise actual control over the property, rather than simply claiming the property without spending time physically occupying and exercising care and control.
  • Exclusive. The trespasser must be the only party occupying the property.
  • Open and notorious. The trespasser must not hide their occupation; they must publicly and openly use the property as would a legitimate owner.
  • Continuous for the requisite statutory period. The trespasser must stay in possession of the land for the required number of years without vacating.

Additionally, the party must clearly intend to appropriate the property from the recorded owner (if there is one).

Statutory Period for Adverse Possession in Texas

A claim for adverse possession can only be brought after sufficient time has passed during which the real owner could have stepped in to claim their property. The requisite amount of time for an adverse possession varies by state. Even within Texas, there are several different time periods set by statute depending on the nature of the trespasser’s claim.

Three years: If the possessor has “color of title,” meaning some sort of deed or conveyance (that is erroneous for some reason) showing the possessor as the title owner, they could bring a claim of adverse possession after three years. For example, if a deed mistakenly includes part of a neighbor’s land, and the deed-holder uses that land as if it were part of their property for three years, they can petition for legitimate ownership of that portion of the land.

Five years: If the possessor “cultivates, uses, or enjoys the property,” pays property taxes on the land, and has some sort of deed of record (similar to the three-year path), they can seek adverse possession after five years.

Ten years: If the possessor satisfies all of the standard requirements for adverse possession but does not have any color of title and has not paid taxes, they could file a claim for adverse possession after 10 years of continuous possession. Per Texas law, land acquired under this provision is limited to 160 acres.

If you need legal assistance with a Texas real estate matter, contact the professional and thorough Texas real estate lawyer Leigh Meineke at the Houston offices of Stephens | Domnitz | Meineke PLLC by calling 832-706-0244.

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