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Adverse Possession in Texas


As a general rule in Texas, a conveyance of land must be in writing to be enforceable. However, one exception to this rule is the concept of "adverse possession," also known as limitation title or, more commonly, "squatter's rights."

We are all familiar with the adage that "Possession is 9/10 of the law." Adverse possession recognizes the reality that most landowners will act promptly to remove a trespasser from their property, and that if a person remains in possession of land long enough he may acquire ownership of that property.

Making a Case of Adverse Possession

The burden of establishing an adverse possession claim rests upon the claimant to prove (1) actual possession of the disputed property; (2) under a claim of right; (3) that it is consistently adverse or hostile to the claim of the owner for the required period of time. Depending on the circumstances, the required period of possession may be between three and twenty-five years.

It is not enough that the claimant was in actual possession. Rather, the claimant's possession must have been inconsistent with and hostile to the rights of the true owner, and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the claimant rather than the record owner. It naturally follows that a person who is in possession with the owner's permission (such as under a lease or a license) is not in adverse possession.

A person cannot acquire property by adverse possession from the State of Texas or a political subdivision of the state, such as counties, cities, navigation districts, municipal utility districts, and certain other entities.

Unless the claimant is fortunate enough to obtain voluntary releases or deeds from all other potential owners, a lawsuit is usually necessary in order to establish a claim of adverse possession. Such lawsuits tend to be very fact-intensive and difficult to litigate because the relevant events occur over a period of many years, and as a result important witnesses have often died or moved away.

Effect of Adverse Possession

Whether limitation title is perfected on a voluntary basis or by a final judgment, the successful claimant acquires full title the same as if such title had been conveyed by deed in writing from the record owner. Accordingly, a title based on limitation defeats all prior title held by anyone else, including the homestead rights held by prior owners, claims under tax deeds or prior judgments, and even liens held by the creditors of any prior owner.

About the Author

The lawyers of Roberts & Roberts are Killeen attorneys providing legal services in the fields of real estate, probate, estate planning, and business law. If you need a Bell County lawyer, we would welcome the opportunity to assist you. Please contact our friendly staff at your convenience.

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