Adverse Possession

Daughter lives with mother on property owned by mother. Son also lives on property owned by mother but on a separate house on section of the property away from mother's house. Son passes away but leaves children living in son's house. Mother passes away. Daughter waits 9.5 years to oust children still living on property due to the fact that she has a will leaving her the property. Son's children file suit to declare they are the rightful owners due to Adverse Possession.

This is just one of many situations that can arise with someone claiming title to property through Adverse Possession. Although Adverse Possession does not occur too often, it does occur when someone claims ownership of property without having legal title to that particular piece of property. See Texas Civil Practices & Remedies Code, Sec.16.021. TCPRC 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."

In order to acquire title to property by adverse possession, a party must prove six elements by a preponderance of the evidence: (1) visible appropriation and possession of the property; (2) that is open and notorious; (3) that is peaceable; (4) under a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6) that is consistent and continuous for the duration of the statutory period. Every case is different having its own specific facts, and if a lawsuit is filed, each case will be tried according to its specific facts. Also, under Texas law, there are five different types of adverse possession (Three year, Five year, 10 year, 25 year and 25 year), each having different requirements and a different statutory period of limitations under the TCPRC.

If you ever find yourself in this type of predicament, give us a call so you can be informed, or better informed, of what you can do to prosecute or defend your case.