Establishing Adverse Possession Under 3 and 5 Year Limitations

REQUIRED PROOF FOR ADVERSE POSSESSION – TITLE THROUGH PASSAGE OF TIME & OTHER PROOF

Under Texas law, adverse possession requires “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.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting TEX. CIV. PRAC. & REM. CODE § 16.021(1)).

The adverse possession statutes are statutes of limitations intended to settle land titles. Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 198–99 (Tex. 2003).

To prevail on a claim of adverse possession, a claimant must establish:

(1) the 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) that involves continuous cultivation, use, or enjoyment throughout the statutory period.

NAC Tex Hotel Co., Inc. v. Greak, 481 S.W.3d 327, 331–32 (Tex. App.—Tyler 2015, no pet.). By statute, “Peaceable possession” means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.

Texas statutes authorize adverse possession under three, five, and ten-year limitations periods. TEX. CIV. PRAC. & REM. CODE §§ 16.024–.026.

BURDEN OF PROOF

A party seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990) (op. on reh’g).

THE FIVE YEAR LIMITATIONS PERIOD

To prevail under the five-year limitations period, a person “must bring suit not later than
five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another 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.”

TEX. CIV. PRAC. & REM. CODE § 16.025(a).

THE THREE YEAR LIMITATIONS PERIOD

To prevail under the three-year limitations period, a person “must bring suit to recover real
property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.024. Proof of “color of title” is only required under the three-year statute.