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Home , Adverse possession, Peaceable possession, Possession (law)

A Reprint From 1152

Vol. 11, No. 1 SOLUTIONS THROUGH RESEARCH Fall 1996

Landownership The adverse possessor may not claim the land based on a forged , a deed ex- Fences and Adverse ecuted under a forged power of attorney or under a quit- claim deed. The mere payment of the prop- According to the Texas Real Es- for a given number of years. The erty taxes can not cause adverse tate Licensing Act, a licensee must term is statu- possession under the five-year advise prospective buyers in writ- torily defined as “possession of real statute. For this reason, one cote- ing of the need for assurance that is continuous and is nant who pays all the property when the earnest not interrupted by an adverse suit taxes for five consecutive years is signed. This is required for a to recover the property.” The can never acquire the other commission. Perhaps the need for owner fails to act by not filing a cotenants' interests under this a survey should be required as well lawsuit or using other legal means statute. because every land transaction may to remove the intruder within the The ten-year statute is some- reveal the possible loss of land. statutes of limitation. times referred to as true adverse The land loss occurs through a Four periods (or statutes of limi- possession. No incidence of title legal concept known as adverse tation) govern . or deed is required for entry. No possession. A person who possesses Under the three-year statute, the payment of property taxes is man- and uses another’s land without intruder must enter the land ei- dated after entry. According to permission eventually may become ther under title or of title as Section 16.026, the adverse pos- the owner. No consideration is re- defined by the statute. Title means sessor simply cultivates, uses or quired. Because the adverse use of the from the sover- enjoys the property for ten con- another’s property is marked—usu- eignty. Color of title refers to a tinuous years. ally by fence lines—a survey is claim based on a land right, land Some restrictions apply to the needed to determine if the fence warrant, land scrip or an irregular amount of land claimed. If the per- placement conforms to the legal chain of title “that does not want son enters without title, and if description. of intrinsic fairness or honesty.” the land is not enclosed, the claim The statutory rules governing Thereafter, the owner fails to file is limited to 160 acres. If the land adverse possession are codified in suit to recover the property within is enclosed, the person may claim Sections 16.021 through 16.034 of three years. all the enclosed acreage that is the Texas Civil Practices and Rem- The three-year statute generates adversely and peaceably possessed. edies Code. Section 16.021 defines the least controversy. If a buyer If the person enters under a reg- adverse possession as the “actual purchases land from the presumed istered deed or other memoran- and visible appropriation of real prop- owner as indicated by the chain of dum of title, however, the erty, commenced and continued title, in all probability, the grantee possessor’s claim extends to the under a claim of right that is in- received title. Adverse possession specified boundaries after ten consistent with and is hostile to is not an issue. years. the claim of another person.” Under the five-year statute, the The concept of tolling alters the Adverse possession is, in fact, a owner must file suit to recover the number of years actually applied combination of conduct (or activ- property before an intruder: toward the three-, five- and ten- ity) on the part of the adverse pos- • cultivates, uses or enjoys the year statutes. According to Sec- sessor and the owner’s inactivity property; tion 16.022, if an owner suffers or failure to oust the intruder. The • pays the property taxes for five from a legal disability when the adverse possessor must enter the consecutive years before they possessor enters, the three-, five- land without consent (adversely) become delinquent; and and ten-year statutes of limita- and stay openly, obviously and con- • claims the property under a tion will not begin running until tinuously in peaceable possession duly registered . the disability is removed. The statute lists the following as legal or 25), peaceable and adverse cate adverse possession. When the disabilities: possession need not continue in terrain bars correct placement, • younger than 18 years old, re- the same person. However, priv- adverse possession is prevented. gardless of marriage, ity of must exist between For example, in Cox v. Olivard, 482 the possessor and each successor. S. W. 2d 682, the placement of a • being of unsound mind or Privity may be established by an fence on one side of a creek, out • serving in the U.S. armed agreement, , devise or inherit- of physical necessity, prevented forces during war. ance. Dale v. Stringer, 570.5 S. W. the neighbor on the other side from For example, if a person enters 2d 414. claiming the land. (In this case, the and uses land owned by a 15-year- In addition to privity of the es- property line was the middle of the old, the statutes toll (suspend) until tates, tacking requires each pos- stream.) These are sometimes the owner reaches 18. Then, the sessor to satisfy the requisites for referred to as fences of conve- adverse possessor must stay on the the particular limitations statute. nience. land another ten years. For instance, each intruder must Finally, anyone claiming land Federal also affects tolling. pay the property taxes under the by virtue of grazing must be aware The Soldiers’ and Sailors’ Civil five-year statute. Finally, no gap, of the cases involving casual en- Relief Act of 1940 found in 50 USC, break or interruption in the physi- closures (McDonald v. Weinacht, Section 525, tolls any cal possession of the land may 465 S. W. 2d 136). Claims based on limitation from running against a occur between the successive grazing livestock must arise person in the U.S. armed services possessors. from the adverse possessor fencing while on active duty. Unlike the Once title is perfected through the cattle in, not the neighbors state law, the owner need not be fencing them out. on active duty when the possessor adverse possession, the statutes confer “full title, precluding all Prospective buyers who discover enters for tolling to occur. a misplaced fence have several Unlike the federal law, the state claims.” Basically the adverse possessor acquires title. options. If the placement occurred statute places a 25-year limit on within the previous ten years, the A pre- survey assures the tolling. According to Section prospective buyer either may re- buyer that the full measure of land 16.027, a person, regardless of le- quire the fence to be correctly gal disability, must bring suit described in the deed is conveyed. located as a condition for closing A fence not conforming to the within 25 years to recover real or grant the neighbors the right legal description should be scruti- property held in peaceable and to use the land on the other side. adverse possession by another who nized. If the fence has been in Permission to use the land stops place for more than ten years, and cultivates, uses or enjoys the prop- adverse possession. The permis- erty. Thus, the fourth statute of if the parties on either side of the sion should be filed in the deed fence have used and claimed the limitations in Texas is the 25-year records. land to the fence as their own, a statute. It limits tolling to 25 years If the fence has been misplaced under the three-, five- and ten- land loss (or gain) is possible. to the buyer’s disadvantage year statutes. Title policies exclude assurances for more than ten years, the The same person need not physi- that the fences and boundary lines prospective buyer may request cally possess the land for the en- coincide. The exception can be proper placement and a release tire period. Successive adverse waived, however, for an additional from the neighbor for any claim possessors may add (or tack) their fee and a survey by a surveyor to the land. If not granted, periods of possession to accumu- chosen by the title company. Pro- renegotiation of the purchase late the necessary times. Accord- spective buyers may wish to pur- price to reflect the shortage is a ing to Section 16.023, to satisfy any sue this option. possibility. limitations period (three, five, ten Not all misplaced fences indi-

The Law Letter is published quarterly by the Center to provide timely legal information that may affect the practice of real estate. The Law Letter is for information only and is not a substitute for legal counsel. Cases should be researched carefully as some may have been repealed, reversed or amended after this issue was printed. The Center will not provide specific legal advice or regulatory interpretations. R. Malcolm Richards, director; David S. Jones, senior editor; Shirley E. Bovey, associate editor; Robert P. Beals II, art director; Kammy Senter, assistant editor; and Judon Fambrough, attorney and member of the State Bar of Texas. Active Texas real estate licensees may receive this newsletter free by sending name, address, telephone and numbers to: Shirley E. Bovey, Real Estate Center, Texas A&M University, College Station, Texas 77843- 2115. Other subscribers, $35 in Texas, $50 out of state. © 1996, Real Estate Center. All rights reserved.