“in good faith and under a deed or other instrument purporting to convey the property that is recorded in the county.” The 10- and 25-year limitations factored into the
appeals court’s reversal of Wells v. Johnson. The adverse possession claimant may seek to preempt
a claim on the part of the titleholder by fi ling what Willis describes as a “trespass to try title action,” which is used to determine title to land or other real property. For those who cannot afford a lawsuit, he says an
alternative is to fi le an affi davit with the county real property records that details the adverse possession claims required under the law.” Such an affi davit acts as a marker that commences
notice, thereby providing a fi xed point for the running of applicable statutes of limitation,” Willis writes. “As the affi davit matures over time it gradually ac-
quires increased credibility.” The owner of record can respond with another affi davit rejecting the adverse possessor’s claim, or can fi le a counter or original trespass to try title action.
Prevent adverse possession claims Lashmet recommends that landowners be proactive
in preventing adverse possession claims. They should frequently inspect their property for suspicious activity. “If you have a squatter on the property, that means
you have a civil claim for trespass,” she says. “Trespass is, simply, entry on the land of another. No damages are required to be proven.” Under those circumstances, seek legal counsel immediately. You are at risk of losing your property to an adverse possession claim. The case could progress to charges of criminal tres-
pass if the squatter remains despite notice that trespass is not permitted. Among the ways to give notice are a “No Trespassing” sign or stripes of purple paint on fences or trees, which was codifi ed into Texas law in 1997 as a signal that visitors are unwanted. The law is specifi c – the paint has to be applied in
vertical lines at least 8 inches long and 1 inch wide, between 3 and 5 feet from the ground, and no more than 100 feet apart on forestland or 1,000 feet apart on other types of property.
In addition, the law (Title 7, Chapter 30 of the state
Penal Code) considers a notice that is ignored to be suffi cient for criminal action if it’s delivered, orally or in writing, by the owner or by someone with appar- ent authority on the owner’s behalf; it’s in the form of fencing or other enclosures obviously designed to keep
Texas law makes it hard to take
someone else’s property by way of an adverse possession claim.
intruders out; or if there are crops being cultivated for human consumption, harvested, or marketable for harvest at the time of entry. There is also a difference between an adverse pos-
session claim and an actual title dispute. “If there’s a true title dispute, then you would have a ‘color to try title’ action to fi gure out who actually owns the land,” Lashmet says. “We deal with that by looking at the document and
seeing who has title to the land, although if one party was on the land and met that requirement of adverse possession, they could use that to bolster their claim that the land should be awarded to them.” Regardless of the type of action being fi led, be pre-
pared to be in it for the long haul. “The legal system is never super-quick,” Lashmet
says. “There is probably no standard time that I could give. There is no deadline, nothing that claims have to be done in “X” number of days after they are fi led. Appeals can certainly be fi led and we have seen ap- peals in some cases. Once there is a trial court deci- sion, then certainly one of the parties could appeal to a Texas appellate court, and once there is a decision there, they could appeal to the Texas Supreme Court. These cases could last several months to several years.” She notes that more than 90 percent of civil cases
wind up settling before trial, so commonly, in adverse possession and other civil cases, “there would be some sort of compromise or settlement agreement that both parties could live with.”
Learn more from Tiffany Lashmet at the 2016 Cattle Raisers Conven- tion, April 8-10, Fort Worth Convention Center. She will be speaking on Top Laws Texas Landowners Should Know, and Hiring on the Ranch. Visit
www.cattleraisersconvention.com for details and to register.
tscra.org March 2016 The Cattleman 95
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