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.

Text Only
Opinion
  • School supplies, football signs of end of summer

    It is not here yet, but there are two landmarks on the horizon which traditionally indicate the end of summer is approaching.

    July 27, 2014

  • This is ... summer?

    Just sitting here, wondering what season this is again ...
    — Seriously, this is summer? In Texas?

    July 20, 2014

  • Why no to YMCA?

    Sometimes the lack of news can be just as disturbing as the daily barrage of bad news.

    July 5, 2014

  • Service members deserve our thanks

    More than two million active and reserve military personnel serve in the United States Military across the world: from just down the road in Fort Worth to the Forward Operating Base Jackson in the Helmand Province of Afghanistan, U.S. men and women endure harsh conditions, potentially fatal missions, rigorous training and heart-aching separation.

    July 5, 2014

  • Texas should not have to face surge alone

    Texas political leaders recently announced an increase in funding and personnel to secure the Texas-Mexico border.

    June 27, 2014

  • Closer to Cliff than Homer on any Father’s Day

    It is Father’s Day, the one day a year when sons and daughters (hopefully) remember to thank Dear Old Dad for all he has meant to them over the years.

    June 15, 2014

  • Lives depend on how we drive

    Local roads and highways have been the scene of six motor vehicle accident fatalities over the past week.

    June 11, 2014

  • Summer’s here, ready or not

    Too late, summer’s here ...
    — The occupants of the Kellar Estate once again find themselves preparing for the annual onslaught of heat and humidity which is summer in Texas.

    June 8, 2014

  • YMCA 'ball' now in city's court

    The YMCA/event center project is now back on track, thanks to a $1 million pledge from L-3 Mission Integration. It has been more than a year since Greenville voters approved a $15 million bond to build to new Y.

    June 1, 2014

  • In just a flash, she's turned 15

    Shaking my head in disbelief once again ...
    Jaylynn is 15.
    Let that sink in for a minute.

    May 25, 2014

Featured Ads
Promotions
Poll

Does Dallas head coach Jason Garrett need for the Cowboys to make the playoffs during the 2014 football season to keep his job?

Yes
No
Who knows with Jerry Jones as owner?
     View Results
Facebook
Must Read
Photos


See more photos and purchase prints here.

AP Video
Texas Scientists Study Ebola Virus Smartphone Powered Paper Plane Debuts at Airshow Southern Accent Reduction Class Cancelled in TN Raw: Deadly Landslide Hits Indian Village Obama Chides House GOP for Pursuing Lawsuit New Bill Aims to Curb Sexual Assault on Campus Russia Counts Cost of New US, EU Sanctions 3Doodler Bring 3-D Printing to Your Hand Six PA Cops Indicted for Robbing Drug Dealers Britain Testing Driverless Cars on Roadways Raw: Thousands Flocking to German Crop Circle At Least 20 Chikungunya Cases in New Jersey Raw: Obama Eats Ribs in Kansas City In Virginia, the Rise of a New Space Coast Raw: Otters Enjoy Water Slides at Japan Zoo NCAA Settles Head-injury Suit, Will Change Rules Raw: Amphibious Landing Practice in Hawaii Raw: Weapons Fire Hits UN School in Gaza Raw: Rocket Launches Into Space With Cargo Ship Broken Water Main Floods UCLA
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide