Trespass to Try Title & Adverse Possession

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What is a Trespass to Try Title Action in Texas?

A trespass to try title action is used to determine title to real property. It is the exclusive means under Texas law to resolve competing claims to a single piece of land. The plaintiff has a very heavy burden of proof in this type of claim and must rely on the strength of their own title, rather than the weakness of the defendant's title. The plaintiff can prove its title by one of the following:

(1) a regular chain of title of conveyances from the sovereign to the plaintiff;
(2) a superior title to that of the defendant out of a common source;
(3) title by limitations [i.e. adverse possession]; or
(4) prior possession which has not been abandoned. Teon Mgmt., LLC v. Turquoise Bay Corp., 357 S.W.3d 719, 728 (Tex. App.--Eastland 2012, no pet. h.).

What is the difference between a Trespass to Try Title action and a Quiet Title action?

A suit to quiet title is an equitable action that involves clearing a title of an invalid or void charge against the title, while a trespass to try title action is a statutory remedy which provides the method of determining title to lands.

Confused? Most Texas attorneys struggle with the distinction too. Give one of our Texas Trespass to Try Title Attorneys a call to discuss whether a Trespass to Try Title suit or Quiet Title suit (or both) fits your needs.

Trespass to Try Title and Adverse Possession

When a party claims title by adverse possession, the claim may be resolved only in a statutory trespass-to-try-title action. McDuff v. Brumley, 603 S.W.3d 449 (Tex. App. Amarillo 2019).

What is Adverse Possession?

Adverse possession occurs when someone possesses the property of another for a required statutory period so that the law recognizes their claim to the title as superior to the true owner. In order for the person to prevail on an adverse possession claim, he/she must possess the property in a manner that is (1) open and notorious; (2) exclusive; (3) hostile; (4) actual; (5) continuous; and (6) for the duration of the statutory period (usually 10 years).

What are the elements of adverse possession?

To adversely possess the property of another, the claimant must meet the elements of adverse possession under Texas law.

First, the possession must be open and notorious, meaning that if the true owner were to visit the property, he/she could plainly see that someone else was living on it or otherwise claiming it. It is not necessary that the true owner ever actually sees someone else inhabit the property, only that they could if they were to look.

Next, the possession must be hostile meaning that the possession by the claimant is against the right of the true owner and without permission. However, the possession of the property must be peaceable, meaning that it cannot be taken by force.

Third, the possession of the property is exclusive if the trespasser alone has possession of the property.

Fourth, the possession must be actual, meaning that the trespasser has control of the property.

Fifth, the possession must be continuous, meaning that the adverse claimant had actual possession of the property for the full statutory period. There cannot be temporary cessations in possession. However, "tacking" can be used to combine the time of successive landowners to meet the statutory requirement. For example, if a trespasser meets the requirements for 5 years and then conveys the property to a new trespasser who also meets the requirements for at least 5 years, this will suffice to meet the continuity requirement and the second trespasser can prevail on the claim.

Finally, the statute of limitations is generally 10 years. This means that even if the adverse claimant were to meet all the other requirements, but for less than 10 years years, he could not prevail. However, there are other applicable lengths of time in certain circumstances. See below for a detailed discussion of the statute of limitations for adverse possession.

How long does it take to adversely possess land?

There are several circumstances that determine the applicable statute of limitations in an adverse possession case:

3-year Limitations Period (Color of Title): If an adverse claimant is in possession of the land and has some title document, though insufficient to actually convey title, and believes in good faith that he has title to the property, he must only satisfy the requirements for 3 years.

5-year Limitations Period: Actions to recover land held by someone who (1) cultivates, uses, or enjoys the property; (2) pays applicable taxes on the property; and (3) claims the property under a duly registered deed must be brought within 5 years.

10-year Limitations Period: 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.

25-year Limitations Period (the "catch-all" period): A person, even under legal disability, must bring suit within 25 years to recover property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

When does adverse possession of land start?

The clock begins running for the rightful landowner to bring suit when the potential adverse possessor has met all the elements of adverse possession, except the period of limitations.

What is the difference between "color of title" and a "duly registered deed"?

The 3-year statute of limitations for adverse possession requires that the adverse possessor have "color of title." Color of title refers to a deed purporting to convey title to the possessor, though it may not convey any title, but the possessor never records the deed in the county records. Phelps v. Pecos Valley Southern Ry. Co., 182 S.W. 1156 (Tex. App. 1916).

The 5-year statute of limitations for adverse possession requires that the adverse possessor have a "duly registered deed." A duly registered deed is a deed that is valid on its face, though it may not actually convey any title, and it is recorded properly in the deed records of the county. Porter v. Wilson, 371 S.W.2d 611 (Tex. Ct. App. 1963); Woodson v. Allen, 54 Tex. 551 (Tex. 1881).

What is a legal disability?

A person is under a legal disability if:

  • They are a minor (under 18 years old)
  • They are of unsound mind
  • They serving in the U.S. armed forces

Texas law allows a longer statutory period (25 years) in which a person under a legal disability may bring suit because they are less likely to be able to discover a trespasser on their property.

Trespass to Try Title Attorney

A trespass to try title action is an exceptionally complex action. You need a Texas Trespass to Try Title Attorney in your corner to protect your rights and your property.

Texas Adverse Possession Attorney

We providing our clients with superior legal services in a cost-effective and efficient manner. Because we understand the expense of litigation, we do our very best to resolve as many cases as possible outside of the courtroom.