The Herald Banner, Greenville, TX

Opinion

December 27, 2012

Adverse possession allowed under certain circumstances

My father died in 1991 and left three tracts of land in Hunt County to me and my two older brothers. We each have a 40-acre tract near Highway 36.

My oldest brother has dementia from Alzheimer’s and my other brother hasn’t been back in Texas in about 15 years. If my cattle have been grazing on their tracts and I’ve been keeping the fences up since 1991, when does the property become mine? G.F., Tawakoni

You may already “own” some or all of the land in your brothers’ names. The legal term for the process of taking ownership of land through use is “adverse possession.” In Texas, adverse possession is allowed in certain circumstances, but the rules are narrow and the courts will require them to be followed to the letter.

Your brothers’ land will probably not become yours if they gave you permission to use the land. If you had paid the property taxes, and your brothers either didn’t know of your use, or failed to object to your use of the land, your claim would be much stronger.

The adverse possession laws are different in every state, but they all require a combination of action on the part of the taker and inaction on the part of the “owner of record” (i.e., the person whose name is on the deed in the County property records). The taker must enter the land without the owner’s consent, and stay openly, obviously and continuously in peaceable possession for a set period of time – either 3, 5, 10 or 25 years. If the owner tries to remove the taker during the period by lawsuit, pressing trespass charges, or other physical action, the taker cannot claim “peaceable possession.”

Under the 3-year statute, a person may become owner under “color of title.” – a claim based on a “fair and honest” land right. If the true owner fails to file suit to recover the property within three years, the taker becomes the owner. This usually applies when someone buys land, but the real estate documents are faulty.

Under the 5-year statute, a person may become owner if they enter the land under a duly registered warranty deed, cultivates or use the property, and pay the property taxes for five consecutive years.

Under the 10-year statute, a person may become owner if they enter the land simply by entering the land and cultivating, using or enjoying the property for ten continuous years.

Under the 3-, 5- and 10-year statutes, a taker may not take land from someone who is a minor, incapacitated or in the armed forces during war. This is particularly important for you because your oldest brother’s Alzheimer’s dementia would block you from claiming adverse possession. If you met the adverse possession requirements before he became incapacitated, you will have to prove the date of his incapacity through medical records. This situation would not affect your claim on the other brother’s property.

The 25-year statute, is essentially the same as the 10-year statute, but is not limited by true owner’s disability, and also can be used when more than one successive possessor cultivates and pays taxes. You should speak to an attorney about which of these statues applies to your situation.

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