Adverse Possession in Texas

Topics Covered

Basics of Adverse Possession
Affidavits of Adverse Possession
Legal Description and Physical Use of the Property
Adverse Possession Waiting Periods
Co-Owners and Co-Tenant Heirs
Claiming or Defending against Adverse Possession
Title Issues
Legal Perils of Claiming Adverse Possession

An Actual and Visible Appropriation

Adverse possession refers to circumstances under which one may lawfully lay claim to ownership of property not originally one’s own. The statute governing adverse possession is Civil Practices & Remedies Code Sections 16.021 et seq. The Code defines 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.”

Legitimate adverse possession claims are rare. Rather than happening as a singular event, they tend to accrue incrementally over the years without notice or fanfare. Classic adverse possession claims include the family that gradually takes over the empty lot next door to their home, or the rancher who has fenced an adjoining tract and pastured his cattle there for a decade.

BASICS OF ADVERSE POSSESSION

Elements of an Adverse Possession Claim

In order to establish a claim for adverse possession, a claimant must prove:

(1) actual possession of the disputed property;

(2) possession that is open and notorious;

(3) possession that is peaceable;

(4) possession under a claim of right; and

(5) possession that is consistently and continuously adverse or hostile to the claim of all other persons for the duration of the relevant statutory period.

See Estrada v. Cheshire, 470 S.W.3d 109, 123 (Tex.App.—Houston [1st Dist.] 2015, pet. denied).

Case law states that it must be true that the possessor of the property actually does openly possess it (the belief of entitlement to possess is insufficient), has in fact possessed it continuously for the statutory period (sporadic possession is insufficient), and peaceably asserts a claim of right adverse to and exclusive of all others (possession shared with an owner is insufficient). All of these are fact issues for a court to decide. Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 438 (Tex.App.—Texarkana 2006, no pet.).

[Adverse possession] requires 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. [The] possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.

See Hardaway v. Nixon, 544 S.W.3d 402 (Tex.App.—San Antonio 2017, pet. denied).

Adverse possession is 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 throughout the statutory period. . . . The statute requires that such possession be inconsistent with and hostile to the claims of all others. . . . One seeking to establish title to land by [adverse possession] has the burden of proving every fact essential to that claim by a preponderance of the evidence. . . . Inferences are never indulged in the adverse claimant’s favor.

See Benner v. Armstrong, 622 S.W.3d 562 (Tex.App.—Waco 2021, no pet.).

It is not enough to be merely caring for property temporarily or even paying the taxes on it until the owner reappears. One can pay taxes on someone else’s property for years, but if other requirements of a lawful adverse possession claim are not met, then those payments are nothing more than a gift to the owner.

Adverse possession may not be asserted against a governmental entity: “A person may not acquire through adverse possession any right or title to real property dedicated to public use.” Civ. Prac. & Rem. Code Sec. 16.030(b).

Strict Rules Apply

Adverse possession rules are specific and strict for a reason. As the Texas Supreme Court has stated, the adverse possession “doctrine itself is a harsh one, taking real estate from a record owner without express consent or compensation.” Tran v. Macha, 213 W.W.3d 913, 914 (Tex. 2006).

The statute sets forth rules and conditions under which the doctrine applies, and these must be conclusively met. The statute is structured in such a way as to require affirmative action by the record owner to reclaim the property within certain periods of time, referred to as statutes of limitation. If the record owner is prevented from taking the property back by means of peaceable self-help, then he or she must file a trespass to try title suit to establish legal ownership and reclaim possession. If the record owner does not act, then the claim is barred and the adverse possessor prevails.

Intent of the Adverse Possessor

In order to become a successful adverse possessor, actual possession must occur along with an unambiguous intention to appropriate the property from the record owner. The phrase occasionally used in the case law is hostile intent which connotes both a state of mind and a range of actions that are clearly designed to claim the land and exclude all others. If such factors are uncertain or difficult to prove, then a claim of adverse possession will almost certainly fail. Nac Tex Hotel Co., Inc. v. Greak, 481 S.W.3d 327 (Tex.App.—Tyler 2015, no pet.).

Notwithstanding the foregoing, adverse possession is fundamentally about action (on the part of the adverse possessor) and/or inaction (on the part of the record owner). Intent without action will not achieve adverse possession.

Paying Taxes

Clients routinely inquire about payment of back taxes on land they want to adversely possess. “Should we pay the taxes?” they ask. Well, yes; otherwise the taxing authorities will eventually conduct a tax sale and title will be acquired by someone else. Clients also ask “Can you guarantee that if I pay the taxes, I won’t lose my money?” The answer is of course no. Firstly, lawyers never guarantee anything. Secondly, the true owner may appear and demand possession. If that occurs, then the client will have made a gift to that person by paying back taxes.

The affidavit of adverse possession is an inexpensive and creative device that can be effective under the right circumstances. The process is not, however, without a measure of risk and uncertainty.

AFFIDAVITS OF ADVERSE POSSESSION

Making the Case for Adverse Possession

An affidavit of adverse possession is an instrument that is recorded in the county clerk’s real property records. There is no standard fill-in-the-blank form prescribed for use in cases of adverse possession. Affidavits of adverse possession are unique and creative documents designed to explain facts and tell a story as to why the claimant’s adverse possession of land should be recognized as legitimate title.

The affiant must present as persuasive a case as possible, both legally and factually. If this is not correctly done, the affidavit may fail.

The reader of such an affidavit, as a practical matter, is a future title company, probably in anticipation of a sale of the property. The title company abstractors, underwriter, and attorneys will be the ones deciding where true ownership lies. If a claimant disagrees with their conclusion, the remedy is to obtain a district court judgment determining title.

Because each case is unique (and there may be different persons, claimants, ex-spouses, children, and other heirs involved) the drafter of the affidavit will have to concisely and clearly explain the circumstances while supplying as much relevant information as is known.

Hybrid Affidavits

If heirs exist (whether they can be found or not), then an affidavit of adverse possession may be combined with an affidavit of heirship—entitled “Affidavit of Heirship and Adverse Possession.” The heirship portion of the hybrid affidavit should include a recitation of family circumstances along with a statement of who the heirs are believed to be, in light of Estates Code Section 203.001. The adverse possession section would make the usual assertions as to actual and peaceable possession, etc. At least two disinterested witnesses should sign. Three is better.

Timing of the Affidavit

Filing the affidavit acts as a marker that commences notice, thereby providing a fixed point for the running of applicable statutes of limitation. As the affidavit matures over time without opposition, it gradually acquires increased credibility.

Note that it is possible to file an affidavit before the applicable statute of limitation has fully run. The affidavit may assert a date when adverse possession commenced (which may even be dated several years in the past) and state that should current circumstances continue and the entire limitations period expire, then the claimant will become the fee simple owner.

County Clerk Obligations

The old dispute over whether or not county clerks have an obligation to accept for filing property executed and acknowledged affidavits of adverse possession was effectively settled by a Texas General Attorney’s opinion (numbered KP-0165) issued in 2017. The question was answered in the affirmative, citing Local Government Code Section 192.001: “The county clerk shall record each deed, mortgage, or other instrument that is required or permitted by law to be recorded.”

Also cited was Property Code Section 12.001(1)(a): “An instrument concerning real or personal property [such as an affidavit of adverse possession] may be recorded if it has been acknowledged, sworn to with a proper jurat, or proved according to law.” Attorney General Ken Paxton further states in his opinion that “A county clerk may not impose filing requirements beyond those set forth in [Property Code] Section 12.001.” After all, the attorney general reasons, “The mere filing of an affidavit asserting an adverse interest in another’s property does not vest the filer with legal title.”

If county clerks wish to have a remedy for suspicious documents, their recourse lies with Government Code Section 51.901(a)(2) which pertains to the filing and recording of documents which the clerk has a reasonable basis to believe in good faith are fraudulent. But clerks cannot discriminate against an entire class of documents per se.

LEGAL DESCRIPTION AND
PHYSICAL USE OF THE PROPERTY

Property Description

So you want to make an adverse possession claim to the west forty acres north of the railroad tracks? Not good enough. The location and boundaries of land claimed must be determinable with reasonable certainty, and that means there must be a known legal description (lot and block or metes and bounds).

The judgment in an adverse possession case must be able to “so identify the land that an officer charged with the duty of executing a writ of possession can locate the property without exercising judicial functions.” Zobel v. Slim, 576 S.W.2d 362 (Tex. 1978).

The reasonable certainty standard may necessitate a new survey in order to make an effective adverse possession claim, especially in the case of rural acreage. One alternative is to obtain such a survey first and then file an affidavit of adverse possession with the survey attached as an exhibit; another option—if it is urgent to put an instrument on record immediately—is to file the affidavit with the property description as it is currently available and then later amend the affidavit to include a current and proper metes-and-bounds description.

Physical Use of the Property

How the adverse possessor physically utilizes the property can be critical. Castillo v. Luna, 640 S.W.3d 256 (Tex.App.—Houston [14th Dist.] 2021) states:

In determining whether adverse possession has been proved, we must consider the nature of the land and the use to which it was put. The claimant need only use the land for a purpose to which is adaptable, and in the same manner an ordinary owner would use the property. [The claimant in this case relies] on the use of the disputed strip as a garage and driveway . . . [however] there is legally insufficient evidence that the disputed strip was continuously used as a driveway for at least one ten-year period.

Fencing the Property

Fencing the adversely-possessed tract can be key to a successful claim. However, the fence must be “a designed enclosure—not just a casual fence.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).

Fencing the adversely-possessed tract may be key to a successful claim. However:

[The fence must be a] designed enclosure—not just a casual fence . . . . If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a casual fence. . . . Repairing and repurposing an existing structure can be evidence of adverse possession if it is an obvious improvement.

See Rhodes, cited above. Given this holding, it may actually make sense for an adverse possessor to tear down an existing fence and replace it with a better one.

The case of Anderton v. Lane, 439 S.W.3d 514 (Tex.App.—El Paso 2014, pet. denied) discusses the idea of a designed enclosure:

Under Texas law, use of land for grazing cattle fails to establish adverse possession as a matter of law unless the fence used is a ‘designed enclosure’ as opposed to ‘casual fences’. . . . Unless the claimant establishes he erected the fence with the purpose of enclosing the property at issue, the fence is a casual fence rather than a designed enclosure [and is therefore insufficient to support a claim of adverse possession.]

If the land in question is not specifically and intentionally fenced by an adverse possessor whose claim is based on cattle grazing, then adverse possession will likely be unsuccessful:

The adverse claimant who relies on grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed. If the fence existed before the claimant took possession of the land, and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a ‘casual fence.’

Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant’s animals within the enclosed area, generally does not change a casual fence into a designed enclosure.

See Benner v. Armstrong, 622 S.W.3d 562 (Tex.App.—Waco 2021, no pet.).

STATUTES OF LIMITATION:
ADVERSE POSSESSION WAITING PERIODS

Statutes of Limitation for Adverse Possession

Adverse possession law is based on notice along with the opportunity for the record owner to respond to that notice. The legitimacy of an adverse possession claim is established when circumstances are such that it is visible to others—meaning others are or should be on actual notice that the possessor is asserting a claim of right to the property which is actual, open, notorious, exclusive, adverse, hostile, continuous, and uninterrupted for the applicable statutory period. Recording an affidavit of adverse possession adds to these actions and makes the adverse possessor’s case more compelling.

The burden here is on the record owner. Once an owner discovers the presence of a potential adverse possessor or is otherwise put on notice of an adverse possession claim, he or she must act to defeat the adverse possessor’s claim within the period prescribed by one of three statutes of limitation—or lose title.

The Three-Year Statute

Civil Practice & Remedies Code Section 16.024 (the three-year statute) states:

Civil Prac. & Rem. Code Section 16.024. [3-Year Statute]

[The original owner] must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.

Under this section, the possessor must actually have title (i.e., a deed as part of a regular chain of title) or at least “color of title,” which refers to a claim to title that has a reasonable basis but for some legitimate reason does not fit within the usual chain of title. So the possessor must be able to produce conveyance or title paperwork to support the claim if it is to be successfully asserted under the three-year statute.

The Five-Year Statute

Civil Practice & Remedies Code Section16.025 (the five-year statute) states:

Civil Prac. & Rem. Code Sec. 16.025. [5-Year Statute]

(a) [The original owner] must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who: (1) cultivates, uses, or enjoys the property; (2) pays applicable taxes on the property; and (3) claims the property under a duly registered deed. (b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

Note that under this five-year statute, some sort of deed of record is still required.

The Ten-Year Statute

Civil Practice & Remedies Code Section 16.026 (the ten-year statute, also called the bare possession statute) states:

Civ. Prac. & Rem. Code Sec. 16.026. [The 10-Year Bare Possession Statute]

(a). [The original owner] must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

(b) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(c) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument.

This ten-year statute is the catch-all that is most commonly used in adverse possession cases.
The statutes of limitation in Chapter 16 are strict. A “suit [by the record owner] to recover property from any person in peaceable adverse possession under title or color of title shall be instituted [within the appropriate time period] of the accrual of the cause of action.” Walker v. Geer, 99 S.W.3d 244 (Tex.App.—Eastland 2003, no writ).

Deed Not Required for Bare Possession

A deed or other memorandum of title is not necessary under the ten-year statute so long as the elements of adverse possession are met. Castillo v. Luna, 640 S.W.3d 256 (Tex.App.—Houston [14th Dist.] 2021, pet. denied) states that possession must be:

(1) actual and visible;
(2) adverse and hostile to the owner of record’s title;
(3) open and notorious;
(4) peaceable;
(5) exclusive; and
(6) must involve continue cultivation, use, or enjoyment of the property for at least ten years.

A party claiming adverse possession as to a cotenant must also prove that actual or constructive ouster has occurred. This is further discussed below along with special requirements in cases of co-tenant heirs.

Other Statutes of Limitation

Two other sections, Civil Practice & Remedies Code Sections 16.027 and 16.028, are less commonly applied. The first provides a 25-year limitation “regardless of whether the person is or has been under a legal disability.” The second allows a 25-year limitation based on a title instrument, even if that instrument is void on its face or in fact.

Statutes of limitation do not include any periods of disability (minority, insanity, or service in the armed forces) on the part of the original owner.

Statutes of limitation may be tacked or combined by various successive possessors of the property so long as there exists “privity of estate” (a direct legal connection by means of the chain of title) between these persons.

Tacking of Adverse Possession Claims

An adverse possession claim is not necessarily lost if the initial adverse possessor departs from the land and possession is shifted to a successor-in-interest who continues to maintain the adverse possession claim:

Adverse possession need not continue in the same person; rather, limitations may be proved by ‘tacking,’ that is, by cumulating [and aggregating] the periods of [adverse] possession of each holder [of the adverse possession claim] and [each] successor [in interest] between whom there is privity of estate.

See Castillo, cited above.

CO-OWNERS AND CO-TENANT HEIRS

Adverse Possession against Co-Owners

A co-owner may not adversely possess against another co-owner unless the claimant clearly repudiates the title and claims to be holding adversely to that title. Dyer v. Cotton, 333 S.W.3d 703 (Tex.App.—Houston [1st Dist.] 2010, no pet.).

Moreover, a cotenant claiming adverse possession against another cotenant must affirmatively show that all other cotenants have been unequivocally ousted from the property. Villarreal v. Guerra, 446 S.W.3d 404 (Tex.App.—San Antonio 2014, pet. denied).

Accordingly, an affidavit of adverse possession, or a deed based on adverse possession, puts cotenants on notice of an adverse possession claim only if that instrument is recorded prior to the other cotenants acquiring their interest.

The Texas Title Examination Standards (non-binding but authoritative guidelines issued by the Title Examination Joint Editorial Board of the Texas State Bar) declare that a title company “examiner should presume that possession by less than all co-owners is not adverse to other co-owners in the absence of repudiation, notice of adverse claim, or ouster.” Standard 18.30. Generally speaking, there is a higher standard for adverse possession in the case of cotenants.

In Hardaway, cited above, the court explained that “Cotenants are required to surmount a more stringent requirement . . . the burden is more onerous because cotenants have rights to ownership and use of the property a stranger would not have. . . .” Thus, a party claiming adverse possession as to a cotenant must not only prove that his possession was adverse, but must also prove that some sort of ouster—actual or constructive—has occurred.

The Question of Ouster

What is meant by ouster? It may mean exactly what it suggests in the physical sense. It may also be constructive as evidenced by decades of exclusive possession without challenge from other co-owners. A reasonableness standard applies:

[Ouster] is nothing more than an application of the rule of circumstantial evidence that the existence of certain facts tends to support a reasonable inference that the record owner has been put on notice that the tenancy has been repudiated. . . .

Thus acts which are inconsistent with the original use of the property may be sufficient to put the owner on notice that the tenancy has been repudiated. The same has been held to be true in cases of long-continued possession by the tenant under claim of ownership where the [claimant] has failed to assert any claim.

See Tex–Wis Company v. Johnson, 534 S.W.2d 895 (Tex. 1976).

The Special Case of Cotenant Heirs

It makes for an interesting case when a possessor stakes an adverse possession claim against family members in an heirship situation—for example, a son wants to claim the family farm after his parents died without wills, and his siblings show no interest or have long since disappeared. Previously, adverse possession against cotenant heirs was accomplished in the same manner as against any other cotenants, with the caveat that in order to be adverse the possessing heir had to demonstrate forcible or notorious ouster of the other heirs, perhaps with the aid of a shotgun.

Rightly recognizing that this approach involved inherent dangers, the legislature in 2017 added Section 16.0265 to the Civil Practice & Remedies Code to govern cases of “cotenant heirs.” Cotenant heirs now have specific statutory burdens to meet if they want to claim adverse possession against their relatives (ouster is no longer one of them).

Who are cotenant heirs?

The statute defines these as “one of two or more persons who simultaneously acquire identical, undivided ownership interests in, and rights to possession of, the same real property by operation of the applicable intestate succession laws of this state or a successor in interest of one of those persons.”

Both affidavits of heirship and adverse possession are contemplated. A ten-year possession period is required during which no other cotenant heir may have contributed to maintenance of the property or payment of taxes; challenged the possessor’s occupancy; asserted or filed any notice of claim; or entered into any agreement with the possessing heir.

There is a five-year waiting period commencing after a cotenant heir files his or her affidavits of heirship and adverse possession. Newspaper notice is also required and a limit of 160 acres is imposed. The result, all in all, is a less colorful but more civilized process.

MAKING OR DEFENDING
AN ADVERSE POSSESSION CLAIM

Offensive Action by the Adverse Possessor

An adverse possessor may present a claim by means of an affidavit of adverse possession filed in the real property records—and leave it at that. Alternatively, the claimant may file suit in district court to establish title. All the usual elements of adverse possession must be shown: (1) a visible appropriation and possession of the land, sufficient to give notice to the record titleholder, (2) that is peaceable, (3) under a claim of right hostile to the title holder’s claim, and (4) that continues for the duration specified in the applicable statute.

Visible appropriation is a key term in the case law. The adverse possessor must “visibly appropriate the property as to give notice to any other person that they claim a right to the property.” Perkins v. McGehee, 133 S.W.3d 291, 292 (Tex.App.—Forth Worth 2004, no pet.). Many people accomplish this by fencing the property and otherwise asserting clear dominion over it. The importance of fencing by means of a designed enclosure is discussed above.

A claimant’s possession must be clearly adverse to the title and rights of the record owner. “Use of another individual’s land with the acquiescence of the landowner does not ripen into adverse possession unless the evidence shows that the landowner was given notice of the adverse possession claim. Possession [must be] hostile from its inception [and indicate] an intent to take [title] as owner.” Bernal v. Chavez, 198 S.W.3d 15 (Tex.App.—El paso 2006, no pet.).

Trespass-to-Try-Title Litigation

A “claim of title by adverse possession is a dispute over title to land; thus the [proper cause of action] to resolve it is a statutory trespass-to-try-title action.” See Brumley v. McDuff, 616 S.W.3d 826 (Tex. 2021).

“A plaintiff may recover (1) by proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by [adverse possession] limitations, or (4) by proving prior possession and that the possession has not been abandoned.” Rogers v. Ricane Enters., 884 S.W.2d 763 (Tex. 1994).

An adverse possessor “has the burden of proving every fact essential to that claim by a preponderance of the evidence.” Harlow v. Giles, 132 S.W.3d641 (Tex.App.—Eastland, 2004, pet. denied).

All interested parties must be joined in the litigation. “Attempts to adjudicate title would not be binding on any [interested] person who was not a party to [the trespass-to-try-title] suit.” Dougherty v. Humphry, 424 S.W.2d 617 (Tex. 1968).

Civil Practices & Remedies Code Section 16.034 provides that the prevailing party in a suit for possession of real property may receive an award of costs and reasonable attorney’s fees.

Reimbursement for Improvements

“An [adverse possession claimant] in a trespass-to-try-title action . . . who has possessed the property in good faith and made permanent and valuable improvements to it” may recover the value of the net benefit to the property (i.e., that which exceeds the value to the claimant). Prop. Code Sec. 22.021. Good faith is an essential requirement in obtaining reimbursement for improvements. Blanar v. Blanar, 598 S.W.2d 381 (Tex.App.—Houston (14th Dist.] 1980, writ ref’d n.r.e.).

Defensive Action by the Record Owner

What should an owner do who is put on notice that someone else is making a claim of adverse possession? There are several options, but doing nothing is not one of them since the statute of limitations will eventually run and the claimant may succeed in acquiring legal title.

The burden is on the record owner to repudiate the adverse possessor’s claim and take the necessary action to defend his title. Options include:

(1) physically displace and exclude the interloper from the property if this can be accomplished peaceably;

(2) record an opposing affidavit expressly rejecting the adverse possessor’s claim, although this method merely states competing claims and leaves the matter unresolved;

(3) file a suit for forcible detainer and attempt to treat the whole issue as if it were an eviction; and/or

(4) initiate district court litigation in the form of a trespass-to-try-title action and a request for a declaratory judgment.

Suits to remove an adverse possessor must be filed within the time limits (the statutes of limitation discussed above) prescribed by Civil Practice & Remedies Code Chapter 16.

Judgment Liens against Adversely-Possessed Property

What happens if the land adversely possessed has one or more judgment liens that have attached to it? A San Antonio appeals court has held that the judgment liens are extinguished.

The parties have stipulated that Jones had a valid lien on the two parcels of property, and that he complied with the statutory prerequisites to foreclose his lien. The parties have also stipulated that, to the extent they apply, Harrison and Stephens have complied with the prerequisites of the three and five-year adverse possession statutes. . . .

Under the facts of this case, the central issue is whether a limitations title by the adverse possession of the successor of title of the judgment debtor extinguishes a judgment lien. We hold that it does under Tex. Civ. Prac. & Rem. Code Sec. 16.024 (Three-year Statute of Limitations), Sec. 16.025 (Five-year Statute of Limitations), and Sec. 16.030. . . . We further hold that limitations commenced to run against judgment lienholder, Jones, from the time of the entry into possession by the respective appellees who purchased from the judgment debtor.

See Jones v. Harrison & Stephens, 773 S.W.2d 759 (Tex.App.—San Antonio 1989, writ denied).

TITLE ISSUES

Title Research in Adverse Possession Cases

In certain cases it may be a good idea to research title to determine if there are known owners who can be located. Title companies will issue a relatively inexpensive title report or an online service can be used. The title report can provide useful information in drafting the affidavit. If the title report reveals owners of record that can be located, a potential adverse possession claimant may be better advised to contact them and attempt to achieve a deal that preserves the existing chain of title. Unfortunately, this may involve payment of money for their interests.

Creating a New Chain of Title

As an additional creative step, the affidavit of adverse possession may be combined with deeds (a “deed out” to a trusted third party and then a deed “back in” to the claimant) so as to create a new chain of title. The objective of this approach is to give the adverse possessor an actual recorded warranty deed in his or her own name. The documentation involved in this creative process is complex and must be correctly worded with specific reference to the recorded affidavit as a basis for the transfer.

Creating a new chain of title is a sophisticated approach designed to allow the adverse possessor to obtain credibility as his claim to title seasons over a period of time. Since this method cannot be relied upon to produce instant results, it is not suited for investors who want to adversely acquire property and then flip it.

LEGAL PERILS OF CLAIMING ADVERSE POSSESSION

Adverse Possession is Not an Investment Strategy

The adverse possession statute does not contemplate or condone the use of adverse possession rules as a business plan or investment strategy for aggressive investors. Lawyers are regularly approached by potential clients who want to assert adverse possession as to properties (sometimes dozens of them) that they perceive to have been abandoned. These are often foreclosed houses owned by lenders that are currently sitting idle. Pursuing adverse possession in such cases may involve breaking and entering, squatting, criminal mischief, filing false instruments, slander of title, and fraud. Accordingly, affidavits of adverse possession should be used prudently and only in legitimate circumstances.

Restraints against Fraud and Forgery

Attempts to achieve adverse possession must stray over the line into fraud or forgery. Business and Commerce Code Chapter 27 includes real estate transfer fraud as a deceptive trade practice under the DTPA. The statute also expressly permits criminal prosecution of such fraud, so effort to establish adverse possession must be soundly based on the facts and the law.

The Texas Home Ownership Protection and Enforcement Act, passed in 2025, addresses “the unauthorized entry, occupancy, sale, rental, lease, advertisement for sale, rental, or lease, or conveyance of real property, including the removal of certain unauthorized occupants of a dwelling; creating criminal offenses; increasing a criminal penalty; [and] authorizing a fee.” The new law amends the Penal Code with regards to criminal mischief by trespassers:

Penal Code Sec. 32.56. (a) False, Fraudulent, or Fictitious Document Conveying Real Property Interest

A person commits an offense if, with intent to enter or remain on real property, the person knowingly presents to another person a false, fraudulent, or fictitious document purporting to be a lease agreement, deed, or other instrument conveying real property or an interest in real property.

Penal Code Sec. 32.57(a). Fraudulent Sale, Rental, or Lease of Residential Real Property

A person commits an offense if the person knowingly: (1) lists or advertises for sale, rent, or lease residential real property while knowing that the person offering to sell, rent, or lease the property does not have legal title or authority to sell, rent, or lease the property; or (2) sells, rents, or leases to another person residential real property to which the person does not have legal title or authority to sell, rent, or lease.

Utilizing fake documents to obtain occupancy is classified as a class A misdemeanor. Using fraudulent documents to instigate the sale, rental, or lease of property is classified as a first-degree felony. Property damage valued at between $1,000 to $300,000 committed while trespassing is a second-degree felony.

Chapter 24B of the Property Code now provides an expedited means of removing squatters that bypasses the usual eviction process:

Prop. Code Sec. 24B.001. Right to Request Removal of Unauthorized Occupant of Dwelling by Sheriff

[A]n owner of residential real property or the owner’s agent may request that the sheriff of the county in which the property is located immediately remove a [squatter] if: (1) the property: (A) was not open to the public when the person entered the property; and (B) is not the subject of pending litigation between the owner and the person; (2) the owner or the owner’s agent has directed the person to leave the property and the person has not done so; and (3) the person is not: (A) a current or former tenant of the owner under an oral or written lease; or (B) an immediate family member. . . .

Although protection is provided for occupants who may be wrongfully removed, the law does not limit “(1) the rights of a property owner; or (2) the authority of a law enforcement officer to arrest an unauthorized occupant of a dwelling for trespassing, vandalism, theft, or another offense.” Prop. Code Sec. 24B.006.

CONCLUSION

Attorney Reluctance

Lawyers frequently decline to handle adverse possession cases. Two reasons are usually involved: first, attorneys are naturally apprehensive about appearing to advance any illegal activity on the part of the client; and second, because clients often fail to appreciate the inherent risk and uncertainty involved in making an adverse possession claim. They do not understand that claiming title to property that is not their own (even by means of a lawful process) cannot be guaranteed by the lawyer. Lawyers never guarantee anything, especially something as chancy as adverse possession.

What does the attorney need from the client?

Assuming one finds an attorney willing to accept an adverse possession case, one should be prepared to explain the specific elements of the adverse possession claim. Has the client taken actual possession without opposition? Fenced the property? Erected a structure? Does the client mow and maintain the property? Pay taxes on it? All of these factors can combine to make an adverse possession claim more persuasive.

If the case involves potential heirs then the client will need to do some research on who the heirs are and where they can be found. Obtaining a title report from a title company may be a good idea in more complex cases.

Finally, a proper legal description (lot and block or metes and bounds) of the property is essential. It does little good to make an adverse possession claim if boundaries are uncertain. In many cases, especially rural property is concerned, the client is best advised to get a survey before proceeding. The client should also provide a copy of the last recorded deed to the property so the affidavit of adverse possession can cite a direct link to the existing chain of title. (Note that an abbreviated legal description from the appraisal district, usually on a different computer than the real property records, is generally not sufficient.)