law-adverse possession | real estate litigation | real estate transactions | trespass to try title claim | title dispute

Adverse Possession  

Adverse possession is the “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.”  
TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(a) (Vernon 2002).  To prove adverse possession, a
claimant must establish six elements:  (1) actual possession of the disputed property, (2) that is open
and notorious, (3) that is peaceable, (4) under a claim of right, (5) that is adverse or hostile to the claim
of the owner, and (6) consistent and continuous for the duration of the statutory period.  Glover v. Union
Pac. R.R., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet. denied); see also Rhodes v.
Cahill, 802 S.W.2d 643, 645 (Tex. 1990).  In this case, the appropriate statutory time period is ten
years.  TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (Vernon 2002).  To establish adverse
possession under this statute, the claimant must demonstrate that he actually and visibly appropriated
the land for ten or more consecutive years, such that his use of the land gives the true owner notice of
the hostile claim.  Rhodes, 802 S.W.2d at 645; see also Masonic Bldg. Ass’n v. McWhorter, 177 S.W.
3d 465, 472 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“The test for hostility is whether the acts
performed by the claimant on the land and the use made of the land were of such a nature and
character as to reasonably notify the true owner of the land that a hostile claim was being asserted to
the property.”).  The possession of the land must “indicate unmistakably an assertion of a claim of
exclusive ownership in the occupant.”  Rhodes, 802 S.W.2d at 645 (quoting Rick v. Grubbs, 214 S.W.
2d 925, 927 (Tex. 1948)).  If “no verbal assertion of claim to the land [is] brought to the knowledge of
the landowner, the adverse possession must be so open and notorious and manifested by such open
or visible act or acts that knowledge on the part of the owner will be presumed.”  Orsborn v. Deep
Rock Oil Corp., 267 S.W.2d 781, 787 (Tex. 1954).
“[A] co-tenant may not adversely possess against another co-tenant unless it clearly appears he has
repudiated the title of his co-tenant and is holding adversely to it.”  King Ranch, Inc. v. Chapman, 118 S.
W.3d 742, 750 (Tex. 2003) (citing Todd v. Bruner, 365 S.W.2d 155, 156 (Tex. 1963)).  Whether there
has been a repudiation of a non-possessory co-tenant’s title generally is a question of fact, but when
the pertinent facts are undisputed, repudiation may be established as a matter of law.  Id.

Under the applicable adverse possession statutes, a person must bring suit not later than 10 years (Section
16.026) or 25 years (Section 16.027) "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." Tex. Civ. Prac. &
Rem. Code Ann. §§ 16.026(a), 16.027 (Vernon 2002). If an action for the recovery of real property is barred by
the statute of limitations, the person who holds the property in peaceable and adverse possession has full title,
precluding all claims. Id. at § 16.030(a). Any ouster by the record title holder after the limitations period comes
too late. Sterling v. Tarvin, 456 S.W.2d 529, 533 (Tex. Civ. App.--Fort Worth 1970, writ ref'd n.r.e.).
"Peaceable possession" means possession of real property that is continuous and is not interrupted by an
adverse suit to recover the property. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(3). "Adverse possession" is
defined as "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." Terrill v. Tuckness, 985 S.W.2d 97,
107 (Tex. App.--San Antonio 1998, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1)).
Possession must be "actual, visible, continuous, notorious, distinct, hostile, and of such as [sic] character as to
indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Id. at 107-08 (quoting
Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990)).
The character of use required to establish adverse possession varies with the nature of the land and with its
adaptability to a particular use. Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.--Houston [14th Dist.]
1996, no writ); Vaughan v. Anderson, 495 S.W.2d 327, 332 (Tex. Civ. App.--Texarkana 1973, writ ref'd n.r.e.).
The adverse possession claimant need only use the land for some purpose to which it is adaptable, and in the
same manner an ordinary owner would use the property. Fuentes v. Garcia, 696 S.W.2d 482, 485 (Tex. App.--
San Antonio 1985, writ ref'd n.r.e.). Whether adverse possession has been established is ordinarily a question
of fact. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).
An adverse possession claim requires proof of the following elements: (1) peaceable possession; (2) actual
possession of the disputed property; (3) under a claim of right; (4) consistently and continuously for the
duration of the statutory period that is adverse and hostile to the claim of the owner. Glover v. Union Pac. R.R.
Co., 187 S.W.3d 201, 213 (Tex. App.--Texarkana 2006, pet. denied) (citing Natural Gas Pipeline Co. v. Pool,
124 S.W.3d 188, 193-94 (Tex. 2003)). The limitations period begins to run on the date the adverse possessor
actually and visibly appropriates the claimed land. Waddy v. City of Houston, 834 S.W.2d 97, 103 (Tex. App.--
Houston [1st Dist.] 1992, writ denied).
Phillips v. Willy (Tex.App.- Houston [1st Dist.] Jan. 28, 2010)(Taft)
(
real estate dispute, adverse possession, repudiation)
AFFIRM TC JUDGMENT: Opinion by Justice Taft     
Before Chief Justice Radack, Justices Taft and Sharp   
01-07-00159-CV  Lonnie Phillips, Jr., and Lance Phillips a/n/f v. Betty Willy, and The Executor of the Estate of
Kenneth Bing, Kimberlyrae Bing Thompson and Kenneth W. Bing, Jr.    
Appeal from 23rd District Court of Brazoria County
Trial Court Judge:  Hon. Ben Hardin

ADVERSE POSSESSION | DEFINITION & ELEMENTS |
APPLICABLE STATUTE OF LIMITATIONS

Adverse Possession Under the Ten-Year Statute

Section 16.026(a) of the Texas Civil Practice and Remedies Code provides: “a person must bring suit not later
than 10 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."  Tex. Civ. Prac. & Rem. Code Ann. §16.026
(a) (Vernon 2002).  If an action for the recovery of real property is barred by the ten-year statute of limitations,
the person who holds the property in peaceable and adverse possession has full title, precluding all claims.  Id.
at §16.030(a).  Any ouster by the record title holder after the ten-year limitations period comes too late.  
Sterling v. Tarvin, 456 S.W.2d 529, 533 (Tex. Civ. App.- Fort Worth 1970, writ ref'd n.r.e.).

“Peaceable possession" means possession of real property that is continuous and is not interrupted by an
adverse suit to recover the property.  Tex. Civ. Prac. & Rem. Code Ann. §16.021(3).  “Adverse possession" is
defined as “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."  Terrill v. Tuckness, 985 S.W.2d 97,
107 (Tex. App.- San Antonio 1998, no pet.) quoting Tex. Civ. Prac. & Rem. Code Ann. §16.021(1).  Possession
must be Aactual, visible, continuous, notorious, distinct, hostile, and of such as [sic] character as to indicate
unmistakably an assertion of a claim of exclusive ownership in the occupant."  Id. at 107-08 quoting Rhodes v.
Cahill, 802 S.W.2d 643, 645 (Tex. 1990).

The character of use required to establish adverse possession varies with the nature of the land and with its
adaptability to a particular use.  Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.- Houston [14th Dist.]
1996, no writ); Vaughan v. Anderson, 495 S.W.2d 327, 332 (Tex. Civ. App.- Texarkana 1973, writ ref'd n.r.e.).  
The adverse possession claimant need only use the land for some purpose to which it is adaptable, and in the
same manner an ordinary owner would use the property.  Fuentes v. Garcia, 696 S.W.2d 484, 485 (Tex. App.-
San Antonio 1985, writ ref'd n.r.e.).  Whether adverse possession has been established is ordinarily a question
of fact.  Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).

To prevail on a claim of adverse possession under section 16.026(a), the elements to prove by a
preponderance of the evidence are: (1) actual and visible possession of the disputed property; (2) that is
adverse and hostile to the claim of the owner of record title; (3) that is open and notorious; (4) that is
peaceable; (5) that is exclusive; and (6) involves continuous cultivation, use, or enjoyment for ten years.  
Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 213 (Tex. App.- Texarkana 2006, pet. denied) citing Natural
Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193-94 (Tex. 2003).  The ten-year limitations period begins to run
on the date the adverse possessor actually and visibly appropriates the claimed land.  Waddy v. City of
Houston, 834 S.W.2d 97, 103 (Tex. App.- Houston [1st Dist.] 1992, writ denied).

To establish adverse possession, a claimant must enter the land with a claim of right that is hostile and
inconsistent with the claim of another person.  Tex. Civ. Prac. & Rem. Code Ann. §16.021(1).  “Hostile" use
does not require an intention to dispossess the rightful owner, or even knowledge that there is one.  Tran v.
Macha, 213 S.W.3d 913, 915 (Tex. 2006).  However, there must be an intention to claim the property as one's
own to the exclusion of all others.  Id.  Belief that one is the rightful owner and has no competition for the
ownership of the land at issue is sufficient intention of a claim of right.  Calfee v. Duke, 544 S.W.2d 640, 642
(Tex. 1976); Julien v. Baker, 758 S.W.2d 873, 877 (Tex. App.- Houston [14th Dist.] 1988, pet. denied).  A visible
appropriation may be taken as evidence of a claim of right when the claim of right is not otherwise expressed.  
Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.- Corpus Christi 1978, no writ).
Kazmir v. Benavides (Tex.App.- Houston [14th Dist.] Jun. 23, 2009)(Anderson)(real estate litigation: adverse
possession)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by
Justice Anderson     
Panel members: Chief Justice Hedges, Justices Anderson and Hudson   
14-08-00034-CV Adolph R. Kazmir and Ruth S. Kazmir v. Ruben A. Benavides and Sylvia Benavides   
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble


Peterson v. Jansen (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Seymore)(homeowner law, dispute between
neighbors, invasion of privacy, nuisance, elements of breach of contract claim not proven, special exceptions,
adverse possession).
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by
Justice Seymore  
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00535-CV   Gary Peterson v. James Jansen and Vikki Jansen
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
R. Jack Cagle  

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008)(Hanks) (real estate law, trespass to try title,
adverse possession, right to trial by jury waived, motion for continuance denied)
AFFIRM TC JUDGMENT: Opinion by
Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-07-00184-CV Percy Lofton, Jr., Conal Lofton, James Lofton, Lonnie E. Turner, Carol S. Lofton Fowler,
Delilah A. Lofton, and Horace Lofton v. Eddie Dyer
Appeal from 278th District Court of Grimes County
Trial Court Judge: Hon. Kenneth Keeling  


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