THE INTEREST OF FULL DISCLOSURE: The subject of adverse possession is very complicated. I am giving you a layman’s explanation of various aspects of adverse possession. If you ever enter into a real estate transaction where the subject of adverse possession comes up and you feel that you need some clarification, contact an attorney who is knowledgeable regarding the subject of adverse possession. Most real estate licensees have a nominal grasp of the subject of adverse possession.
A couple of upfront comments regarding ownership and possession. Owning a piece of real property and being in possession of a piece of real property are not synonymous. When you own a piece of property you essentially have legal title to the property. When you are in possession of a piece of property you are physically occupying the property......but you are not necessarily the owner of the property. Being in possession of a piece of property usually means that you have the right to occupy it, even if you do not own it. Have you ever heard the phrase “Possession is nine-tenths of the law.” That phrase essentially means that the possessor of the land has more control of it than the owner. As a company who manages property, we know that we are unable to arbitrarily make a tenant vacate a property. The tenant has the right to occupy the property under the terms of his lease. If a tenant is in violation of his lease we may not physically move him out because of his possessory rights. We have to go to JP court and file a suit for forcible detainer (eviction). Texas law requires that the tenant is given three days to vacate unless a properly prepared lease has a different number of days in it. The eviction process cannot commence until after the number of stated days has passed. Then we go to JP court and file the suit. The constable has to serve the tenant.....and there are various ways of serving a tenant. The court hearing will be around to 10 to 12 days after notice has been served. If we prevail at the hearing we then get a judgment for possession. However, the tenant has five days to appeal. If the tenant remains in the property after the five days and has not appealed, we may then get a writ of execution and physically dispossess him, i.e., remove his belongs from the property and put them out on the curb, as long as it is not raining or snowing. By the way, it is illegal to lock a tenant out of his property when he is in violation of his residential lease. If the property is commercial, then the tenant may be locked out if he is in violation of his lease.
ADVERSE POSSESSION: The right of an occupant of land to acquire title against the real owner, when the possession has been actual, continuous, open, notorious, hostile, visible, peaceable and exclusive for the legal period. There are four legal periods for the adverse possession statutes in Texas. Under the 3-year statute, the adverse possessor must have an unbroken chain of title that appears to go back to an undisputed owner. If another claimant to the property does not sue for possession and a court order of title within three years, he will lose any rights he may have had. Under the 5-year statute, if the adverse possessor does not have an indication of title but enters possession under a recorded deed and pays taxes for five years, any other claimant only has five years to assert any rights he has. Under the 10-year statute, an adverse possessor does not have to have a recorded deed to the property in order to claim ownership. This claim to ownership can only be applied to tract of land of no more than 160 acres. Neither the 3, 5 nor 10-year statute can be asserted against individuals who are minors, insane or in prison. Under the 25-year statute, the adverse possessor must have taken possession of the property under a document indicating ownership rights. This document must also be recorded in the public record. There are times when an individual acquires property where he is unable to obtain clear title because all of the owners who need to sign a deed cannot be found. Under this scenario, an attorney will draw up a document called “Affidavit of Use and Possession”. This is basically a document that is recorded in the deed records of the county and indicates that the individual is claiming ownership of the property. Essentially the 10-year statute will apply.
The bottom line is this: When you are buying property always have the title examined in order to assure yourself that there are no issues regarding who is the actual owner of the property. If there are issues get a lawyer involved.