with evidence of new fencing or substantial modifi ca- tion of the existing fence. In addition, witnesses said the Wells family had con-
tinued to graze cattle on the land without interference, while Johnson’s use of the property was not “consistent, continuous and uninterrupted by temporary vacancy,” she wrote, as required by Texas law. Find the entire post at
agrilife.org/texasaglaw by
typing “Opinion Outlines Adverse Possession Law in Texas” in the search box.
Six points to prove Texas law makes it hard to take someone else’s
property by way of an adverse possession claim. Lashmet says 6 points have to be proved by a pre-
ponderance of the evidence. There has to be (1) visible appropriation and possession of the property; (2) that is open and notorious; (3) that is peaceable; (4) un- der a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6) that is consistent and continuous for the duration of the statutory period. “It’s pretty rare to see a claim, probably even rarer
to see a successful claim, because it is pretty diffi cult to meet all the elements and prove true adverse pos- session,” she notes.
Adverse possession claim must be specifi c Unless all of the conditions are met, an adverse pos-
session claim will be disallowed. On his website, www.
lonestarlandlaw.com, Spring-based real estate and as- set protection attorney David J. Willis notes, “It is not enough to be merely caring for property temporarily, or even paying the taxes on it, until the owner reap- pears. One can pay taxes on someone else’s property for years, but if other adverse possession requirements are not met, then those payments are nothing more than a gift to the owner.” Willis also writes that to be considered, a claim
must be more specifi c than the “west 40 acres north of the railroad
tracks...there must be a proper legal
We are not going to let somebody put up a little sign in the back corner of the property that says, ‘I
claim this land by squatter’s rights. I’ll fi le in court in 20 years.’
94 The Cattleman March 2016
Six Points to Prove Adverse Possession
• visible appropriation and possession of the property
• that is open and notorious • that is peaceable • under a claim of right
• that is adverse and hostile to the claim of the owner
• that is consistent and continuous for the duration of the statutory period
description (lot and block or metes and bounds). This may necessitate a survey, especially in the case of rural property.” Depending upon the urgency, he writes that the
claimant could obtain the survey fi rst and then attach it to an affi davit of adverse possession, or could fi le the affi davit with the best property description available and then amend it later with the survey. By “open and notorious,” Lashmet says the law
means the use of the property has to be plain to any- body. “For example, if you have someone who is out there with a tent and running cattle, they are clearly someone who is on and using the land,” she says. “We are not going to let somebody put up a little
sign in the back corner of the property that says, ‘I claim this land by squatter’s rights. I’ll fi le in court in 20 years.’” There is no corresponding requirement that the
landowner make conspicuous use of, or perform im- provements on, the property.
Statutes of limitations vary The statutes of limitations vary with the claim. A
claim has to be brought within 3 years, Lashmet writes, “to recover property held by another in peaceable and adverse possession under title or color of title.” It’s 10 years if the adverse possessor “cultivates, uses
and enjoys the property,” and 25 years if the claimant has been faced with legal disability (for instance, is not of age or is ruled incompetent), but just 5 years if the possessor also pays taxes on it and has a registered deed. The claimant, even under legal disability, also has up to 25 years if the possessor holds the property
thecattlemanmagazine.com
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