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Some Discussion of Adverse Possession in Texas
Texas has five different adverse possession limitation statutes, a 3-year, 5-year, 10-year, and two 25-year statutes. Here are some fun facts about all of them and the limits of their applicability to resolving what are actually boundary disputes.
The Three-year Statute of Limitations
1. The 3-year statute requires color of title. This means that the party asserting title under the 3-year statute must produce an apparently regular chain of title back to the sovereign covering the land in dispute. The statutory definition of “color of title” is “a regular chain of transfers of real property from or under the sovereignty of the soil”.
This statute was originally enacted in 1841 to deal with a problem peculiar to Texas. Prior to then, a variety of land grants had been made under the sovereignties of Spain, Mexico and the Republic of Texas. During this same period the archiving of land titles was very irregular, making it in many cases difficult or nearly impossible to determine the ownership of many bodies of land. The statute was intended as curing title defects arising from this fact and favoring those who entered into possession of land in good faith under a grant from government.
2. The 3-year statute does not apply to a dispute over the location of a record boundary. If the area in dispute was not not within the claimant’s deed, then he had no color of title to it. If the area in dispute was withint the deed, the claimant actually had paramount title and so resort to the limitations statue would be unnecessary.
The Five-Year Statute of Limitations
1. To apply, the claimant must:
– cultivate, use, and enjoy the property in question,
– pay applicable taxes on the property, and
– claim the property under a duly recorded deed.2. The use and enjoyment of the land necessary to fulfill the test of the statute will vary with the nature of the land, depending upon the uses to which the land is susceptible or may be adapted. The question of sufficient use is a fact question that will be specific to the case.
3. The taxes must be paid on the entire property described in the deed under which the property is held by the adverse claimant and before becoming delinquent.
4. The purpose of the requirement of a duly recorded deed is to put the record owner on notice that an adverse claim exists and the description contained in the deed must be adequate in itself to identify the land in dispute without reference to other instruments of record to supplement the description.
5. The possession of the land described in the duly recorded deed must be actual possession of the entire tract. Otherwise, the constructive possession of the record owner of the land in dispute will defeat that asserted by the adverse claimant. This requirement can be a serious problem where narrow strips of land are involved, such as the unusable land along fences that may figure into what is really just a boundary dispute.
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Recovery of Attorney’s Fees
A major problem with bringing a Trespass To Try Title suit in Texas is that the statutes make only a limited provision for recovery of attorney’s fees. In particular, the statute provides that “in a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court may award costs and reasonable attorney’s fees to the prevailing party.”
In other words, only the person seeking to recover the land from a person in actual possession stands to be awarded costs and reasonable attorney’s fees. This is a large advantage to the record owner who is typically the party seeking to recover possession.
Use of Declaratory Judgments Act
Many disputes that really were those of boundary had in the past been brought under the Declaratory Judgments Act to take advantage of the more favorable provisions for recovering attorney’s fees and costs of court. However, in 2004 the Texas Supreme Court held in Martin V. Amerman that in Texas boundary disputes may only be determined as actions in Trespass To Try Title.
Since most boundary disputes deal with narrow strips of land for which proving the facts of possession and use may be highly problematic, the pleadings in Trespass to Try Title may be amended to specify that the dispute is a boundary dispute only.
The plaintiff in a boundary dispute must present some competent evidence of title to the disputed property such as a copy of a recorded deed by which title was acquired.
However, because the plaintiff in a Trespass to Try Title suit who fails to prove his title will be divested of title and vests the same in the defendant, the plaintiff should be careful only to place in issue the specific areas subject to the boundary dispute. These will typically be narrow strips or slivers of land.
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mount title and so resort to the limitations statue would be unnecessary.
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> The Five-Year Statute of Limitations
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> 1. To apply, the claimant must:
> – cultivate, use, and enjoy the property in question,
> – pay applicable taxes on the property, and
> – claim the property under a duly recorded deed.
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>Informative post. Virginia is a bit different (as are other states). Particularly the payment of taxes.
Virginia:
Code Section 8.01-236, 237
Time Period Required for Occupation 15 yrs.and Color of Title: 15 yrs
Time for Landowner to Challenge/Effect of Landowner’s Disability With disability: 25 yrs. max.
Improvements –
Payment of Taxes –
Title from Tax Assessor –Interesting read.
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For an authoritive analysis of Sect 16 of the Texas Civil Procedures and Remedies Code, see Atty Judon Fambrough’s article “Use it or Lose it” in the Apr 2006 issue of Tierra Grande, a quarterly publication of the Mays Business School ot Texas A&M at: http://recenter.tamu.edu. The article is Publication 1776
An interesting factoid in the article points out that a suit to try title is not the only way to record a claim, the adverse possessor can record an affidavit if it sets forth all the elements required to prove adverse possession. The only one with standing to challenge such an affidavit once it is recorded, is the deed holder, not a surveyor nor title insurer.
Richard Schaut
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> An interesting factoid in the article points out that a suit to try title is not the only way to record a claim, the adverse possessor can record an affidavit if it sets forth all the elements required to prove adverse possession. The only one with standing to challenge such an affidavit once it is recorded, is the deed holder, not a surveyor nor title insurer.
Note that what Richard suggests is not actually supported by either the 3-year or 5-year statutes mentioned above.
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No part of Section 16 prevents the affidavit as Mr. Fambrough’s article describes it.
Richard Schaut
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> No part of Section 16 prevents the affidavit as Mr. Fambrough’s article describes it.
Any affidavit pertaining to real property is allowed to be recorded in Texas, but it should be understood that an affidavit has no benefit under either the 3-year or 5-year statutes. The questions of possession, enjoyment, and use are strictly questions of fact to be determined by a court. Where the issue is really a boundary dispute, the questions of possession and use are typically secondary to the deeds under which the parties claim, anyway.
What an affidavit is most useful for in land surveying is not for proving adverse possession claims but for boundaries that have a history that may not be apparent in the record, to perpetuate old surveys or facts that would support a finding of an established boundary were the boundary to be in dispute.
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Interesting read kent. Thanks.
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Sorry, an affidavit would not cut it, even under the 10 year statute mentioned in the article (at least not on the information in the article).
The ten year statute allows a “memorandum”, however, the article also states that said “memorandum” must be of a nature conveying title.
Affidavits are not, and can not be contracts. They are limited to recording facts that are knowledge of some person. So, an affidavit can be filed that says “I own to the fence”, but not that says “I convey to you all property to the fence”. Of course you might get one filed that reads like a contract, but I doubt the court would not see through that.
The “memorandum” does apparently include quit claim deeds. And I’m sure there are other writings that might work. But, I’m not going to make any suggestions as the statutes and court cases are clear that adverse possession is frowned upon.
The rule that I like (which I made up myself) is that adverse possession is a remedy under the law. It should (and usually is) limited to righting a wrong done to someone. The wrongful act is committed by the record owner who knows or should have known of the possession but allowed the trespasser to improve the property and now wants to take advantage of said possessor’s good faith misunderstanding and benefit from the improvements. Yes, I know a few states don’t treat it like this and still allow squatters rights. In fact the NY high court changed (in my opinion) the law to allow squatters rights. But the NY government quickly changed it back (against the counsel of the NY BAR I might add).
Now I know there are separate specific statutes that deal with this also. But I think they were enacted because of misplaced adverse possession decisions.
At any rate, I agree with Kent in that these things are usually mere boundary retracement problems that no one that the clients have hired has been qualified to address.
I think surveyors should stick to investigation and analysis leading to perpetuating the boundary’s originally contracted to. Leave the equitable decisions to the courts, where they belong.
Course, I haven’t consulted the “manual” on this yet:)
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Shame on you Frymire
You need to learn something about land law before you make your irrational statements.
From the “Use it or Lose it” article by atty Judon Famborough:
At the conclusion of adverse possession, record title to the property still rests with the former owner. To get record title, the possessor may either file a lawsuit known as “trespass to try title” or file an affidavit of quiet enjoyment. The affidavit sets forth the facts establishing the possessor’s rights to the property under the three-, five-, ten-, or 25-year statute.If you are not the ‘holder of record title’ as shown by your deed to the property, your opinion regarding the validity of the affidavit is just so much garbage and any competent lawyer would tell you the same thing.
Go back to law school and this time, STAY AWAKE!!!
Richard Schaut
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> Sorry, an affidavit would not cut it, even under the 10 year statute mentioned in the article (at least not on the information in the article).
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> The ten year statute allows a “memorandum”, however, the article also states that said “memorandum” must be of a nature conveying title.Yes, among the instruments other than deeds qualifying as memoranda of title within the meaning of the 10-year statute are title bonds and judgments of a court in a partition suit, both of which purport to arrange to dispose of the title to land.
> […] Course, I haven’t consulted the “manual” on this yet:)
LOL!
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You cannot sell what you do not own. I read that somewhere. A transfer of rights may have occurred given a certain fact set and applicable state law, but this is not something a suveryor can fix or do anything about. A court of equity will determine the question and after that decision is reached,then and only then will your client have MARKETABLE TITLE to the land transfered.
Thanks for the post Kent…. great reading….
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The original Act of 1841
The 10-year statute of limitations was originally enacted in 1841 by the Congress of the Republic of Texas in the following form:
>Sec. 17. Be it further enacted, That ten years of such peaceable possession and cultivation, use or enjoyment thereof, without any evidence of title, shall give to such naked possessor full property precursive of all other claims, in and to six hundred and forty acres of land, including his, her or their improvements, – yet the right of the government is not to be barred, and there is saved to the person or persons having the title and cause of action the duration of disability to sue for non-age, coverture or insanity.
Gammel’s Laws of Texas Vol. 2 Pg. 631;
Act of February 5, 1841The wide variety of “memoranda of title” that were in circulation in Texas in 1841 is indicated by Sec. 23 of the same act which provided:
>Sec. 23. Be it further enacted, That all certificates for headrights, land scrip, bounty warrant, or any other evidence of right to land recognized by the laws of this government, which have been located or surveyed, shall be deemed and held as sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law; all laws to the contrary notwithstanding.
The obvious context of the time was the great confusion that existed in land titles. In part this was because of the poor archiving of the records of the grants originating under the sovereignties of Spain, Mexico and the Republic of Texas; in part it was due to the variety of written evidence under which the record titles were set up under those original grants; and beyond both there was the fact that fraudulent land dealings were not uncommon. This statute of 1841 appears to have been drafted to provide a remedy also to some person who had been in possession of land under a forged deed or some written conveyance that was later simply lost.
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Covertunre in the original Act of 1841
> >Sec. 17. Be it further enacted, That ten years of such peaceable possession and cultivation, use or enjoyment thereof, without any evidence of title, shall give to such naked possessor full property precursive of all other claims, in and to six hundred and forty acres of land, including his, her or their improvements, – yet the right of the government is not to be barred, and there is saved to the person or persons having the title and cause of action the duration of disability to sue for non-age, coverture or insanity.
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> Gammel’s Laws of Texas Vol. 2 Pg. 631;
> Act of February 5, 1841The final clause of the original 10-year statute of limitation exempted limitations from running against minors (non-age) and those held to be insane. The mention of “coverture”, however, is a relic of an earlier era when the rights and property of married women were generally considered to be merged into the persons of their husbands.
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Marketable title
Marketable title:
One that a reasonably well-informed purchaser would, in exercise of ordinary business prudence, be willing to accept. See 172 S.W. 471, 473. “A title, to be marketable, need not be perfect, (i.e., free from every possible technical criticism), but it must be reasonably safe….” 136P. 849. It should be free from reasonable doubt so that it would not expose the party who holds it to the hazards of litigation. 510 P. 2nd 1223, 1230. see also good title. (Barron’s Law Dict. 3rd Ed.)In order to convert an unmarketable title caused by a poor or inaccurate description, to a marketable title, it is simply necessary to record the correction to the inaccurate description. Only a surveyor can provide that service, not the lawyer nor the court.
The boundaries called for in the correction are the physical boundaries referred to in Sect. 16 of the Texas Civ. Proceedure & Remedies Code.
Richard Schaut
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