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  1. #1
    Join Date
    Feb 2011
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    Default Right to Property by Adverse Possession in Texas

    My question involves real estate located in the State of Texas

    Do I have grounds for asserting a right to property in Texas by adverse possession?

    My grandmother bought a house in a small Texas town in the early fifties. The house was on a narrow lot with a few outbuildings, including an old outhouse. The outhouse had been built by a previous owner, probably in the twenties before water and sewer service was provided by the city. Not long after my grandmother purchased the house, the fence between her property and the neighbor's property was replaced by the neighbor with a low concrete retaining wall on the same line as the old fence.

    In the early eighties the outhouse was rebuilt by my mother, who had inherited the house from my grandmother, and it continues to be used as a storage shed. In the mid-eighties the owner of the property next door had his property surveyed when he planned to build something on his property. The survey indicated that the property line ran about two feet on my mother's property, through the outhouse. Nothing was done about it and my mother continued to use and maintain the property up to the retaining wall.

    I inherited the house from my mother but live in another town. The property next door was recently sold and the purchasers of the property were aware of the issue with the property line before they purchased the property. I made inquiries, through my attorney, about the strip of property and it was my attorney's understanding that the new owners were willing to settle the property line, but were not willing in incur any costs associated with it. I notified the new owners, through my attorney, that I was willing to pay them for it and for any related expenses. They rejected the offer and within days pulled up the retaining wall and laid large rocks along the property line, with the outhouse in the middle of the row of rocks. By now they may have tried to move the outhouse.

    Do I have grounds for asserting a right to the property by adverse possession?

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Right to Property by Adverse Possession in Texas

    Texas has several sections that apply to AP. I posted a few other pertinent sections as well.

    Sec. 16.021. DEFINITIONS. In this subchapter:
    (1) "Adverse possession" means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.
    Sec. 16.023. TACKING OF SUCCESSIVE INTERESTS. To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.

    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


    Sec. 16.027. ADVERSE POSSESSION: 25-YEAR LIMITATIONS PERIOD NOTWITHSTANDING DISABILITY. A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985
    .
    Sec. 16.034. ATTORNEY'S FEES. (a) 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:
    (1) shall award costs and reasonable attorney's fees to the prevailing party if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith; and
    (2) may award costs and reasonable attorney's fees to the prevailing party in the absence of a finding described by Subdivision (1).
    (b) To recover attorney's fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises. The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.
    (c) The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney's fees in an amount determined by the court to be reasonable.

    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
    Amended by:
    Acts 2009, 81st Leg., R.S., Ch. 901, Sec. 1, eff. September 1, 2009.
    Sec. 16.063. TEMPORARY ABSENCE FROM STATE. The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence.

    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
    So, it would appear, by your description of the situation, you do have a valid claim under AP...unless there was some agreement way back when when it was realized your mother was using some of the neighbors property. If there was permissive use, it defeats an AP claim.

  3. #3
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    Default Re: Right to Property by Adverse Possession in Texas

    Consider also acquiescence:
    Quote Quoting Moore v. Stone, 255 S.W.3d 284, 288 (Tex. App.-Waco 2008, pet. denied)
    When a boundary line between adjoining owners is uncertain or controverted, that boundary line may be established by implied agreement, and if the implied agreement is disputed, acquiescence may be shown by circumstantial evidence. Wall v. Carrell, 894 S.W.2d 788, 797-798 (Tex.App.-Tyler 1994, writ denied); Fulford v. Heath, 212 S.W.2d 649, 654 (Tex.Civ.App.-Amarillo 1948, writ ref'd n.r.e.). The person claiming that the common boundary was established by acquiescence must show that he has title to the tract and that the owners of the property on both sides of the line agreed to, acquiesced in, or recognized such line as the boundary. Wall, 894 S.W.2d at 798; Davis v. Miers, 308 S.W.2d 277, 280 (Tex. Civ.App.-Eastland 1957, writ ref'd n.r.e.). In order to establish a boundary-by-acquiescence, the agreement must stem from some initial uncertainty or dispute over the true boundary line. McAllister v. Samuels, 857 S.W.2d 768, 778 (Tex.App.-Houston [14th Dist.] 1993, no writ). "The existence of uncertainty, doubt or dispute is essential to the validity of such [an] agreement." Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 714 (Tex. 1941).

    Although acquiescence and recognition may be evidence of an agreement fixing a boundary and may support an inference or presumption that there has been such an agreement, this presumption will not apply when induced by mistake, or when the true boundary is established conclusively by undisputed evidence. Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 292*292 (Tex.1970); Wall, 894 S.W.2d at 798. Further, when there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a finding that such other line is the true line. Id.
    Although at some point a survey was done which established the actual property line as other than the location of the wall, I don't think that would implicate the language that acquiescence cannot occur "when the true boundary is established conclusively by undisputed evidence" because there had already been years of acquiescence to that line. Arguably the, "Shrug, oh well" attitude of the neighbor supports a claim of acquiescence.

    One way or another, if you want to preserve the land between the misplaced and actual boundary line as yours, you need to retain a lawyer to file a lawsuit to attempt to gain title.

  4. #4
    Join Date
    Feb 2011
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    2

    Default Re: Right to Property by Adverse Possession in Texas

    Thank you for the information and for the issues to consider. The hard part may be to find the right attorney to represent me. I have an attorney in the town, but adverse possession may not be a concept he's familiar with.

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