As a general rule in Texas, one’s ownership of land must be in writing to be enforceable. You need a deed or conveyance indicating that you are the true owner. But there is an important exception to this rule, known as adverse possession. Whether you’re a property owner in Houston’s suburbs or a ranch, you likely have several neighbors bordering your land. Surprising though it might seem, those neighbors might be able to gain legal title to pieces of your property through the legal doctrine of adverse possession. And while it might be less likely, an unknown trespasser can also squat on your land and develop a claim to legal ownership.
To make sure that your land remains yours and that a neighbor can’t claim a portion of it, it's worth familiarizing yourself with the Texas’s adverse possession laws. There may also be times when you yourself need to assert an adverse possession claim, over land that you feel you've developed a right to use and want to continue using.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over the land of a property owner. The concept developed in early British jurisprudence. Today, its function is mainly to achieve a fair result when one owner has neglected or forgotten about a piece of property while another has been using or caring for it for so long that to make him or her leave would create hardship.
Adverse possession in Texas is controlled by statutes passed by the state legislature, but also by the courts. Importantly, Texas places the burden of proof to establish a claim of adverse possession on the trespasser. Whoever holds legal title is presumed to be the owner unless and until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove that a judge should give him or her title or ownership over the land.
There is no single statute in Texas that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors over many decades. As in most states, adverse possession in Texas is established from the nature of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period.
Every state has a slightly different statutory period for which a trespasser must occupy the land in order to claim title. Most states have just one period – for example, 20 years. Texas is more complicated, with a few different potential statutory periods that might apply depending on the circumstances.
Under Tex. Civ. Prac. & Rem. Code § 16.024, the trespasser can bring a claim of adverse possession after three years. However, he or she must establish “color of title” – meaning that the trespasser has some sort of deed or conveyance, albeit perhaps a mistaken one, that shows that he or she is a record title owner.
An example of this would be a trespasser who duly purchased a property, and the deed mistakenly indicated that his purchase included part of a neighbor’s land. He occupies that part of the mistaken land for three years under the assumption that he bought it, and the neighbor says nothing. In this situation, after three years, he could bring a claim under § 16.024 to actually acquire that land under adverse possession.
Under Tex. Civ. Prac. & Rem. Code § 16.025, the trespasser can bring a claim of adverse possession after five years. Here, adverse possession can be established in a similar manner as § 16.024, with the added factors of showing “cultivation” of the land and payment of taxes. In other words, if a trespasser cares for a piece of land and also pays property taxes on that land, these weigh in favor of giving him or her record title after a five-year period.
Under Tex. Civ. Prac. & Rem. Code § 16.026, the trespasser can bring suit within ten years without any sort of tax payments or “color of title.” However, the claimant must be able to establish all other standard elements of adverse possession – open, exclusive, continual, actual and hostile possession of the land. By statute, any land acquired under this provision is limited to 160 acres.
Example: Imagine that Matt and Monica live next to one another in Austin. There is no dividing fence or apparent boundary between their yards. Matt builds a shed that is actually on Monica’s side of the property, covering about ten square feet of earth. Monica doesn’t say anything. Matt uses the shed as if it were on his own land. He does this for 11 years. Under the rubric described above, Matt can probably establish that he “owns” the land on which he was encroaching. Monica could have stopped Matt by asking, over those 11 years, that he remove his shed, or sign a rental agreement to show that this was an arrangement that they mutually consented to. But Texas courts won’t let her suddenly eject Matt after she failed to exercise her rights for more than a decade.
The doctrine of adverse possession in Texas protects someone who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of others for the specific purpose of acquiring title. In other words, in Texas, there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility.
Rather, any entry and possession for the required 20 years that is exclusive, continuous, hostile, actual, and open – even if under a mistaken claim of title – is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Matt built the shed knowing that he was on Monica’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
Land held by Texas’s state and municipal government entities are generally immune from adverse possession actions. That means that title to public lands usually can’t be acquired by adverse possession. So, if you live next to an unused state park outside of Dallas, you won’t be able to expand your backyard merely by mowing the lawn or building a shed and waiting 20 years. The state of Texas will still “own” it.