What is the Time Period for Adverse Possession in Texas?

Full question:

I am a real estate broker in Texas and was representing a buyer in a FSBO sale. The sellers did not tell us about a post for the bottom of their porch decking on a coastal home when built was on neighbors property about 1'. This was built back around 2003 and now that my buyer has bought the property and asked the neighbor to stop using his driveway to access the neighbors property he mentioned this post being on his property. Is there anything that he can do to my buyer if my buyer continues to refuse to let him use his driveway? The survey after looking at it very closely does show the extending line by a hair. What are the timelines for encroachments in Texas now are they still 10 yrs?

• Category: Real Property
• Subcategory: Adverse Possession
• Date: 04/07/2025
• State: Texas

Answer:

It may be possible to enter into an agreement for an easement. A quiet title or trespass to try title action is the method of determining title to lands, including the boundaries of that land. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act, such as removing a structure. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.

In the case of an encroachment, a plaintiff may be awarded the fair value of the property rather than have the structure removed. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.

An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.

Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement. The period for adverse possession based solely on use of the property in Texas is 10 years.

For further discussion, please see:

http://lonestarlandlaw.com/Adverse.html

Please see the following Texas statutes:

§ 16.023 CIV. PRAC. & REM. Tacking of Successive Interests

To satisfy a limitations period, peaceable and adverse possession does
not need to continue in the same person, but there must be privity of
estate between each holder and his successor.

§ 16.024 CIV. PRAC. & REM. Adverse Possession: 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.

§ 16.025 CIV. PRAC. & REM. Adverse Possession: Five-Year Limitations
Period

(a) 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.

(b) This section does not apply to a claim based on a forged deed or a
deed executed under a forged power of attorney.

§ 16.026 CIV. PRAC. & REM. Adverse Possession: 10-Year Limitations
Period

(a) 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.

(b) Without a title instrument, peaceable and adverse possession is
limited in this section to 160 acres, including improvements, unless the
number of acres actually enclosed exceeds 160. If the number of enclosed
acres exceeds 160 acres, peaceable and adverse possession extends to the
real property actually enclosed.

(c) Peaceable possession of real property held under a duly registered
deed or other memorandum of title that fixes the boundaries of the
possessor's claim extends to the boundaries specified in the instrument.

§ 16.027 CIV. PRAC. & REM. Adverse Possession: 25-Year Limitations
Period Notwithstanding Disability

A person, regardless of whether the person is or has been under a legal
disability, must bring suit not later than 25 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.