Don R. White Jr.

Adverse Possession is a misunderstood legal concept that gains popularity occasionally when a news story or rumors circulate about an absurd situation. The reality of Adverse Possession is often much less interesting and far more complicated.

Adverse Possession, in a general sense, is a legal concept stating that, if you possess and occupy a piece of land that you don’t legally own for a specific period of time, you then become the legal owner of the property.

In other words, if you possess real property adversely to the legal owner’s claim for long enough, you become the legal owner.

How “Common Law” Adverse Possession Works

Adverse PossessionThe basic Adverse possession statutory time period is 25 years. There are also specific elements of an Adverse Possession claim, including that your possession of the property must be “open” (not secret), “continuous” (without interruptions like moving, or changing of ownership) and “hostile” (can’t be with the permission of the landowner). If the landowner gives you permission, your possession isn’t hostile, or if you move off the disputed portion and return, its not “continuous” and therefore its not “adverse.”

Obviously, its not often that someone lives for 25 years on the same piece of property, and much less does it on someone else’s property against their wishes.

Adverse Possession claims are extremely difficult to establish for a reason: you’re asking the Court to give you someone else’s property for nothing. Its akin to establishing that someone else cares so little for property that they have effectively abandoned it to you, and that they knew they were doing it.

Adverse Possession Statutes in Texas

What I’ve described above is the “common law” Adverse Possession claim. Common law is where you can find relief in the Courts without a specific statute that governs your claims. There are actually several different Adverse Possession statutes in Texas, also known as Limitations Title. There is a 10-year, a 5-year, a 3-year and the 25-year statute. The legal difference between the four is specific to their use in a lawsuit.

These statutes are tools to be used in litigation to establish ownership of a disputed tract of property. For example, if under the 5-year statute, the original owner finds there has been an infringement on their land because of a duly registered deed, the active cultivation or use of their property, or because someone else has been paying taxes on their property, they must bring suit to stop the infringement within 5 years of the day it started.

This is different from saying, “I’ve been doing this for 5 years, so I own the property now.” The 5-year statute is simply a defense that the Adverse Possessor can use to block attempts to recover use of the property by the record title owner.

Most Common Types of Adverse Possession Claims

Far and away the most common uses of an Adverse Possession claim are over-fence boundaries that stray from the record of deed metes and bounds of the legal description of the property. Many times, one will see that Farmer Brown built his fence a few feet over the property line many years ago.

Some time later, a survey discovers the error, and when the record owner of the property seeks to have Farmer Brown’s fence moved, Farmer Brown can either defend his right to have the fence remain under a shorter statute or establish that he owns the disputed land under a longer statute.

Declaring Adverse Possession

An Adverse Possession Affidavit is a tool that has been used to declare that Adverse Possession is occurring. This kind of affidavit has no actual, enforceable legal effect; rather, it is a document that can be evidence of the elements needed to prove an Adverse Possession claim. Simply filing such an affidavit does nothing, but when bringing an Adverse Possession claim sometime later down the line, it can be useful to refer to the affidavit and when it was filed to help establish the elements necessary to prevail on the claim.

There are other tools that can be used to help build an Adverse Possession claim, such as reciprocal deeds and Affidavits of Heirship.

Handling Adverse Possession

In the end, Adverse Possession claims are highly technical undertakings and generally outside the scope of what a pro se litigant can handle.

A highly qualified Real Estate Attorney is essential to managing both the prosecution and defense of Adverse Possession claims. Hayes, Berry, White & Vanzant Board Certified Real Estate Attorneys are highly experienced in these types of claims and the issues that tend to surround them. If you think you have an Adverse Possession issue, contacting an experienced attorney should be your first step.