APRIL 2006 (Rev. Nov. 2009) PUBLICATION 1776 A Reprint from Tierra Grande

eal estate practitioners may Adverse is statutorily defined as “an actual and visible appropriation of real , commenced and con- tinued under a claim of right that is inconsistent with and is not be well versed in one of hostile to the claim of another person” [Section 16.021of the Texas Civil Practices and Remedies Code (CP&RC)]. the most talked about but This means if someone enters the real property of another R without consent (as a trespasser) and uses the property in unconventional means of acquiring such a manner that clearly demonstrates the trespasser’s claim to the property contrary to the rights of the true owner, the land becomes the trespasser’s property if certain other or losing land. Adverse possession conditions are met. The “other conditions” depend on how the entry occurred, how the property was used and the duration of undermines all other traditional possession. In Texas, the statute of limitations forms the basis for ad- verse possession. If the property owner does not file a suit or means of changing . No otherwise remove the trespasser within a certain period, the possessor receives “full , precluding all claims” (Section contract exists, no consideration 16.030 of the CP&RC). Oddly enough, four statutes of limita- tion govern adverse possession. changes hands and title insurance Three-Year Statute The three-year statute bars the rightful owner from filing a will not cover the transaction. lawsuit to recover possession when the adverse possessor has been in peaceable possession under title or color of title for adverse possessor entered under a recorded deed or memoran- three years (Section 16.024). dum of title. Peaceable possession means continuous and uninterrupted If the adverse possessor enters without a deed or memo- possession. In other words, the adverse possessor’s claim to the randum of title and the land is not fenced, the possessor may property was not challenged nor was the possessor removed claim no more than 160 acres. If the land is fenced, the adverse during the three years. possessor may claim all the land under fence if the entire Title means the adverse possessor entered with a deed fenced tract is held peaceably and adversely. that traces its origin back to the patent, the time the State Different rules apply when the possessor enters under a of Texas or the Republic of Mexico transferred its rights to recorded (registered) deed or a memorandum of title that private ownership. contains a legal description of the property. The possessor may Color of title means the chain of title has some irregularities, claim the entire described tract even though only a part was but it still stands the test of fairness and honesty. The term actually possessed. Possession of part extends the claim to the also means that the chain of title could originate from a certifi- whole. Fencing plays no role. cate of headright, a land warrant or a land scrip. The definition Memorandum of title is not defined in the statute. Basically, of these terms is beyond the scope of this article. it is a written document reflecting a transfer of title. A will This statute is rarely called into question because the ad- meets the requirement as does a tax deed issued by the sheriff verse possessor receives a deed from someone who owns the at a tax sale. property according to some chain of title. Adverse possession Entry under a forged deed, while excluded under the five-year is rarely a factor. To date, only five appellate cases have arisen statute, is recognized under the ten-year statute. Likewise, the under this statute. In all but one, the case was dismissed for ten-year statute recognizes entry under a quitclaim deed while lack of evidence. the five-year statute does not. Five-Year Statute Twenty-Five-Year Statutes Section 16.025 bars the owner from filing a lawsuit to hree statutes address adverse possession when the land recover possession when the property has been held continu- is held peaceably and adversely for 25 years. Two are ously and adversely for five years by someone who: discussed here; the other is covered later under the • cultivated, used or enjoyed the property, T topic of tolling. • paid the property taxes before delinquency and The first statute prohibits the owner from filing a lawsuit to • entered the property under a duly registered deed. recover possession from anyone who has possessed the prop- The statute specifically excludes entry under a forged deed erty continuously, adversely, in good faith and under a recorded or a forged power of deed or other instru- attorney. If someone enters a property as a trespasser ment of conveyance Texas appellate case for 25 years (Section law sheds additional and uses the property in a way that clearly 16.028). The possessor light on the require- receives good and ments. For example, a demonstrates his or her claim to the marketable title to the duly registered deed property. Possession means a recorded war- property contrary to the rights of the true of a part of the land ranty deed. A quit- described in the deed claim deed, one that owner, the land becomes the trespasser’s if extends the posses- simply releases (does sion to the entire tract not grant or convey) certain other conditions are met. even though the deed the grantor’s right, title is void. or interest in the property, does not suffice. The second statute addresses title claims against an apparent Unlike the three-year statute, only the deed, not the chain of record owner (Section 16.029). Prima facie evidence exists that title, is relevant. Basically, the adverse possessor must secure the apparent record holder lost title when the: a warranty deed from someone who has the legal capacity • apparent record holder did not exercise dominion over the to sign. The deed must be recorded when possession begins. property or pay the property taxes for one or more years Thereafter, the adverse possessor must pay the property taxes during the preceding 25 years, and for five consecutive years. • possessor (opposing party) openly exercised dominion over the property, asserted a claim to the property and paid the Ten-Year Statute property taxes annually before delinquency for as long as The ten-year statute is used more often than any of the oth- 25 years. ers (Section 16.026). The statute bars the owner from filing The term apparent record title is not defined in the statute a lawsuit to recover possession when the property has been or in the case law. held continuously and adversely for ten years by someone who Evidently, the apparent record title holder is the person who cultivates, uses or enjoys it. owns the property according to the chain of title. The statute requires no deed for entry and no payment of property taxes. The primary issue is the amount of land Tacking the possessor may claim. Different rules apply depending The same person need not physically adversely possess the on whether the land was enclosed (fenced) and whether the property for the entire duration of the three, five, ten or 25 years. Subsequent possessors may add (or tack) their posses- Federal law, which supersedes Texas law, differs in several sion periods together to reach the required period. The peri- ways (50 USCA Section 501). First, it tolls all four statutes, ods of peaceable, adverse possession need not commence and not just the first three. Second, military service tolls the stat- continue in the same person as long as privity of estate exists utes whether or not the country is at war. Third, it absolutely between (or among) the possessors (Section 16.023). tolls the statutes regardless of when the owner enters the The term privity of estate is not defined by statute but by military service. Tolling ceases six months after the owner is case law, which mandates that: discharged. • each predecessor have the same type of possession and/or Adverse Possession and Minerals use required by the statute, With the value of minerals exceeding the value of the • no interruption in possession occurs when one possessor surface in many areas of Texas, how does adverse possession leaves and another enters and of the surface interact with mineral rights? According to • transfer between the possessors is by agreement, gift, Texas case law, the possessor acquires all the mineral interest will or inheritance. A quitclaim between the possessors owned by the surface owner at the time the adverse posses- suffices. sion begins. If the surface owners owned half the minerals Tolling when the adverse possessor enters, then the adverse possessor acquires the surface and half the minerals when the adverse ometimes the time spent physically possessing the prop- possession ends. erty does not count toward adverse possession. Both Texas Slaw and federal law affect the issue. Update Effective Sept. 1, 2009 Under Texas law, if the owner suffers from a legal disability The 81st Legislators changed the law effective Sept. 1, at the time the adverse possessor enters (Section 16.027), the 2009, regarding the award of attorney fees in a suit involving statute tolls (suspends or stops) the countdown until the dis- adverse possession. Prior to this date, Section 16.034 of the ability is removed. Texas tolling apply only to the three-, Texas Civil Practices and Remedies Code provided that the five- and ten-year statutes. court may award costs and reasonable attorney’s fees to the A person with a legal disability is defined (Section 16.022) as prevailing party who recovers possession of the property from anyone: a person unlawfully in actual possession. • younger than 18 years old, regardless of whether the After this date, the statute now provides that the court person is married; shall award costs and reasonable attorney’s fees to the pre- • of unsound mind; or vailing party who recovers possession of the property from a person unlawfully in possession when the court finds that the • serving in the U.S. Armed Forces during time of war. person unlawfully in possession made a claim of adverse pos- If the owner suffers from more than one disability when the session that was groundless and made in bad faith. adverse possessor enters, tolling ceases and the countdown The statute goes on to say that the court may award costs begins when one (not all) of the disabilities is removed. and reasonable attorney’s fees to the prevailing party in the Texas law puts an end to tolling after 25 years. An owner suf- same circumstances even though the claim was not ground- fering from a legal disability is barred from filing a lawsuit to less and made in bad faith. recover property when the property has been held continuously and adversely by someone who cultivates, uses or enjoys it for Fambrough ([email protected]) is a member of the State Bar of Texas 25 years. and a lawyer with the Real Estate Center at Texas A&M University. Adverse Possession Factoids

• A private individual may not ac- creeks, gullies or cliffs make it physically impossible to quire public land through adverse do otherwise. In such cases, the owner on the other possession. Lands owned by a pub- side cannot claim adverse possession to the prop- lic entity, such as the state or federal erty between the true boundary line and the fence government, cannot be adversely pos- location. sessed. • At the conclusion of adverse possession, • “Casual enclosures” and “convenient record title to the property still rests with the fences” do not necessarily establish adverse former owner. To get record title, the pos- possession to property within the fence lines. sessor may either file a lawsuit known as A casual fence is either one built by a former “trespass to try title” or file an affidavit of property owner or one designed to fence out quiet enjoyment. The affidavit sets forth livestock, not to enclose the property. A fence the facts establishing the possessor’s of convenience varies from the true property rights to the property under the three-, line because topographical features such as five-, ten-, or 25-year statute.

MAYS BUSINESS SCHOOL Texas A&M University http://recenter.tamu.edu 2115 TAMU 979-845-2031 College Station, TX 77843-2115

Director, Gary W. Maler; Chief Economist, Dr. Mark G. Dotzour; Communications Director, David S. Jones; Associate Editor, Nancy McQuistion; Assistant Editor, Kammy Baumann; Assistant Editor, Ellissa Brewster; Art Director, Robert P. Beals II; Graphic Designer, JP Beato III; Circulation Manager, Mark Baumann; Typography, Real Estate Center. Advisory Committee Douglas A. Schwartz, El Paso, chairman; David E. Dalzell, Abilene, vice chairman; Joseph A. Adame, Corpus Christi; Tom H. Gann, Lufkin; Celia Goode-Haddock, College Station; Joe Bob McCartt, Amarillo; Catherine Miller, Fort Worth; Nick Nicholas, Dallas; Jerry L. Schaffner, Dallas; and Larry Jokl, Brownsville, ex-officio representing the Texas Real Estate Commission.

Tierra Grande (ISSN 1070-0234) is published quarterly by the Real Estate Center at Texas A&M University, College Station, Texas 77843-2115. Subscriptions are free to Texas real estate licensees. Other subscribers, $20 per year. Views expressed are those of the authors and do not imply endorsement by the Real Estate Center, Mays Business School or Texas A&M University. The Texas A&M University System serves people of all ages, regardless of socioeconomic level, race, color, sex, religion, disability or national origin. Photography/Illustrations: Judon Fambrough, pp. 1, 3.