In the state of Texas, adverse possession is a little known or used way to claim a foreclosed or abandoned property. It is however, perfectly legal.
Each state has its own laws regarding adverse possession. Research your state’s laws to ensure each step you take is in the right place and direction. Keep in mind that adverse possession isn’t always successful. The legal owner of the property does have rights, and has to assert those rights peacefully under the law.
Here is one case of adverse possession in Texas. Following this article, links are given for specific legal statutes involving adverse possession rights and property owner’s rights in Texas. In order for either side to prevail, the legal steps must be followed exactly.
In other states, adverse possession may be called “squatters’ rights,” but under adverse possession, legal paperwork must be filed to claim the property. In the case of squatters (people occupying property without legally filing claim for ownership), different laws may apply. Research those statutes carefully to find out what your rights would be if you’re considering squatting, or if you are a property owner, what rights you have.
Adverse possession began as a way to deal with abandoned farm property. It’s roots are in British Commonlaw, and continue today.
In an interview with Fox News, Lary Morandi, Director of State Police Research for the National Conference of State Legislatures said, “It’s kind of a quirky doctrine- a common-law doctrine designed to acknowledge that if you got possession of a property and no one’s been challenging it, you should have some type of title to it.”
Most of the time, adverse possession involves fence lines. Neighbors over time might move a fence over the property line in a neighborhood or a farm, and use the property. If the owner doesn’t object after a statutory (legal) period of time, the encroacher can claim the property as their own.
In the case of a Texas man, Kenneth Robinson, filed an adverse possession claim for $16 and moved into a foreclosed house worth $330.000. The owner, a bank, would have to file a complicated lawsuit in order to claim the property and evict Robinson. If the bank doesn’t file in three years and Robinson remains in the house, he can file for legal ownership.
Outraged neighbors called the police, who read the adverse possession papers filed at the courthouse, and said the matter is a civil one. Neighbors cannot file suit for trespassing, only the legal property owner can do that.
The person claiming adverse possession can’t just show up on the weekends- they have to live in the property for the time period.
As foreclosures across the nation continue, the number of adverse possession cases appears to be rising.
Real Estate Attorney Gennady Litvin stated in an interview with Fox News, “We haven’t seen the bottom of the real estate market yet.
Fox News interviewed Real Estate Attorney Stephen Meister. He said, “People are using this as a sword, not a shield.” He stated that in Florida, there were people forming companies to seize large numbers of properties at the same time using adverse possession, and then rent out the properties for profit. That’s not the way the law works. Some were arrested on felony charges. No word yet as of this article what the outcome of those cases are.
Because of the rising number of adverse cases, 11 states have chosen to tighten, amend or abolish adverse possession. To date, only Florida and Washington state have managed to toughen the laws.
Texas, Maine, and Connecticut failed to amend it, and Alabama, Missouri and Virginia failed to abolish it.
Colorado amended their adverse possession law after a public outcry. A couple lost over a third of their property to their neighbors- an ex-judge and an attorney. They were unable to build their retirement home on what was left. Now, under the new statute, adverse possession takes 18 years. The burden of proof is on the adverse possessor, and the court can order the possessor to compensate the owners for back taxes and interest.
Each state’s laws are different. The possessor may have to occupy the property for as little as three, or as many as twenty years before they can claim legal title.
Federal, state, county or city-owned property cannot be occupied and claimed under adverse possession laws.
This isn’t breaking into a house or property and living there in secret. That’s breaking and entering.
Adverse possession means you put up notice in the court, out in the open, saying, “this abandoned property is mine- I’m legally claiming it.” The possessor, according to state statute, may be required to notify the owner of record. The possessor can have the bills in his/her name, (depending on the local utilities company), notify the neighbors of their intent, and put up “no trespassing” signs. Maintaining the property during the period is paramount.
As foreclosures and property abandonment continue, some may see this as an opportunity to have their own property. It’s certainly one way to accomplish this goal. Before taking the step, I would wholeheartedly advise anyone to research online about their state’s adverse possession laws and pay strict attention to all the details.
If the legal owner of the property files a trespass or title suit, the courts may award the title to the owner instead of the possessor. That means any work the possessor put into the house would be lost.
This method is not without risk. I could not say whether banks/mortgage companies/real estate investors/private owners would or would not challenge an adverse possessor.
Source: Stephen Clark, “Texas Man’s $16 Property Seizure Throws Obscure Law Into Spotlight,” Fox News Website, 22 July 2011
