- Adverse possession can provide a trespasser a way to acquire land in opposition to a properly recorded title owner.
- To do this, however, the trespasser must strictly comply with requirements set out by the Texas courts.
- A property owner, therefore, must be diligent to make sure nobody is squatting on his or her land.
As you may have noticed, I like to mix up topics in this blog. Sometimes I talk about social issues affecting Central Texas. Sometimes its political heavy. And then sometimes – like this week – we nerd out on legal issues. But they are legal issues that can affect real estate owners. So hopefully you will love it as much as I do.
Did you know, therefore, that a person can legally acquire land that he or she has no legal interest in? As long as the person thinks he or she owns the land and controls it, he or she may be able to acquire legal ownership to it. And there would be nothing that the record owner could do about it.
If this seems crazy – its not. Its called adverse possession and that’s what we are going to talk about this week.
What is Adverse Possession?
People are generally familiar with adverse possession when its colloquially called “squatter’s rights.” Adverse possession allows a person who honestly entered and held possession of land he did not own to acquire that land – even if it legally belongs to someone else. If someone trespasses on land and the person holds the land, it can become his or her’s.
But Texas courts have a strict set of requirements for a trespasser to acquire land by adverse possession. Specifically:
- The use by the trespasser must be open and notorious. This means that it must be clear the trespasser has occupied the land and it is not hidden from the title owner.
- The trespasser’s use of the land must be hostile to the record owner. It cannot be from permission granted by the owner.
- The trespasser must have actual use of the land. He or she has to be physically present on it.
- The trespasser must have exclusive use of the land to the exclusion of anyone else.
- And finally, the trespasser must continuously use the land for the statutorily required period. This varies depending on the type of claim being made but the most common is ten years.
See e.g., Glover v. Union Pac. R.R., 187 S.W.3d 201, 213 (Tex.App.-Texarkana 2006, pet. denied). See § 16.021(1) (West 2002)
If the trespasser can fulfill all of these requirements, he or she can go to the court and try to get legal title to the land in question.
Very Difficult to Have a Successful Claim
I am not writing this article to scare you, though. So please do not take it that way. Adverse possession is disfavored by Texas courts. As a result, the elements listed above are strictly enforced. And it is difficult for a claimant to make a successful adverse possession claim.
I want to give you an example because it came up in a lawsuit our client had recently. As I wrote above, some of the elements are that the use has to be open and notorious and exclusive. This has led to a whole area of litigation around fences and whether they are used to fulfill these requirements. But just having a fence around the property may not be sufficient to fulfill the elements of adverse possession. Because if the fence was there before the trespasser entered the property, then the trespasser did not do anything to show that his or her use of the land was hostile, exclusive, open and notorious, etc.
So for a fence to be adequate evidence, it has to have been erected by the trespasser. But what if there was partially a fence there previously? Or the trespasser repaired the fence? These are all questions that courts consider when determining whether a trespasser has fulfilled the elements of an adverse possession claim.
So filing an adverse possession claim is difficult. But its not impossible. It does happen. As a result, property owners need to be diligent to make sure nobody is squatting on their land. And if you do find someone who is on your land without your permission, give us a call. We can help make sure your land is protected.
