Cost and Fee-Shifting in Texas Adverse Possession Cases

There is little doubt that adverse possession lawsuits can be costly. Litigants to these title disputes -- where the key evidence is necessarily historical and often pre-dates current ownership of a given property -- frequently incur substantial expense in surveys, document searches, depositions of prior owners, expert witnesses and title searches. Naturally, a real estate lawyer's time associated with weaving or undermining a credible claim for ownership which is contrary to "legal title" as it appears in the deed records can also translate into significant attorneys' fees. Thus, property owners with boundary disputes often inquire about the possibility of recovering their costs and attorneys' fees in the event that the prevail in an adverse possession case.

For all its criticism, the Texas Legislature has generally been sensitive to the sanctity of land ownership in Texas. For that reason, it enacted Section 16.034(a) of the Texas Civil Practice and Remedies Code to allow the Court (in its discretion) to award costs and reasonable attorneys' fees to the prevailing party in a suit for the possession of real property where one party is "claiming under record title to the property and one claiming by adverse possession." TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, this grant of discretionary authority for trial courts to award fees didn't have much of an impact on the number of adverse possession suits, including those where claims of ownership by adverse possession were simply frivolous.

To address this concern, statutory revisions were made in 2009, and Section 16.034(a) now requires the trial court to award attorney’s fees “if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith, . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (Vernon Supp. 2009).

The issue of unlawful possession is still part and parcel of the availability of attorney’s fees under section 16.034(a). TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, under the statutory revisions, the presence of these elements, together with a finding of bad faith, frivolity and/or groundlessness will necessarily result in the shifting of costs and attorneys' fees.

When considering whether to litigate a trespass, title dispute or adverse possession claim, a landowner shouldn't count on having the opposing party pay his or her attorneys' fees. However, given the 2009 revisions to Section 16.034(a), the frequency of such recovery in those cases involving groundless claims of adverse possession seem much better.

Recovery of Attorney's Fees in Adverse Possession Cases

There is little doubt that adverse possession lawsuits can be costly. Litigants to these title disputes -- where the key evidence is necessarily historical and often pre-dates current ownership of a given property -- frequently incur substantial expense in surveys, document searches, depositions of prior owners, expert witnesses and title searches. Naturally, a real estate lawyer's time associated with weaving or undermining a credible claim for ownership which is contrary to "legal title" as it appears in the deed records can also translate into significant attorneys' fees. Thus, property owners with boundary disputes often inquire about the possibility of recovering their costs and attorneys' fees in the event that the prevail in an adverse possession case.

For all its criticism, the Texas Legislature has generally been sensitive to the sanctity of land ownership in Texas. For that reason, it enacted Section 16.034(a) of the Texas Civil Practice and Remedies Code to allow the Court (in its discretion) to award costs and reasonable attorneys' fees to the prevailing party in a suit for the possession of real property where one party is "claiming under record title to the property and one claiming by adverse possession." TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, this grant of discretionary authority for trial courts to award fees didn't have much of an impact on the number of adverse possession suits, including those where claims of ownership by adverse possession were simply frivolous.

To address this concern, statutory revisions were made in 2009, and Section 16.034(a) now requires the trial court to award attorney’s fees “if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith, . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (Vernon Supp. 2009).

The issue of unlawful possession is still part and parcel of the availability of attorney’s fees under section 16.034(a). TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, under the statutory revisions, the presence of these elements, together with a finding of bad faith, frivolity and/or groundlessness will necessarily result in the shifting of costs and attorneys' fees.

When considering whether to litigate a trespass, title dispute or adverse possession claim, a landowner shouldn't count on having the opposing party pay his or her attorneys' fees. However, given the 2009 revisions to Section 16.034(a), the frequency of such recovery in those cases involving groundless claims of adverse possession seem much better.

What Are the Elements Necessary to Acquire Title to Land in Texas By Adverse Possession ?

Many landowners are vaguely familiar with the concept of "adverse possession." We've all heard stories of neighbors moving their fencelines to acquire title to chunks of a neighboring property, or of "squatters" claiming ownership of another's land after trespassing for many years.



Adverse possession is a "hot" topic in many parts of the country. During 2008, alone, the Legislatures of New York and Colorado made significant changes to those States' adverse possession laws.



However, as a Texas real estate and water rights lawyer and longtime advocate of landowners' rights, I remain convinced that the topic of adverse possession is not as important or as controversial anywhere as it is in the Lone Star State. After all, the story of we Texans is one of private property ownership. Beginning with Ausin's Colony, our history has been one of abundant land available for permanent and unalienable ownership. To me, it is little wonder that settlement of Stephen F. Austin's colony from 1821 to 1836 has been called the most successful colonization movement in American history. It's also little wonder that Texas caselaw is full of Court decisions relating to claims of title to land by adverse possession.



Yet, despite the vague familiarity of many people with the concept of adverse possession, few seem to truly understand its nuances, or how it can be established.



“Adverse possession” means 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. Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002). To establish title through adverse possession, “the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex.1948. The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).



In determining what will amount to adverse possession, considerable importance is placed on the nature of the land and its use. Wall v. Carrell, 894 S.W.2d 788, 800 (Tex.App.-Tyler 1994, writ denied).



A party claiming adverse possession must prove:



1) actual possession of the disputed property,

2) under a claim of right, and

3) that is adverse or hostile to the claim of the owner and that it was consistently and continuously so for the duration of the statutory period.



Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex.App.-Texarkana 2002, pet. denied); Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex.App.-Waco 2000, pet. denied).



Texas Courts have had occassion to examine each of the "elements," separately, and have expanded on what is required to demonstrate them. The following is a brief survey of those Courts' interpretations of adverse possession law.



1. Possession



Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990).



2. Claim of Right



‘Claim of right’ ... means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession. Boyle v. Burk, 749 S.W.2d 264, 266 (Tex.App.-Fort Worth 1988, writ denied); see Tran v. Macha, 50 Tex. Sup.Ct. J. 186, 187, 213 S.W.3d 913, 915 (Tex.2006) (per curiam) (“[T]here must be an intention to claim property as one's own to the exclusion of all others....”).



3. Hostility or "Adversity"



The "test of hostility" is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Taub, 75 S.W.3d at 626; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex.App.-San Antonio 1998, pet. denied). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex.2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.



How Long?



The question of how long one must "claim" owenership or possession of land in order to establish title through adverse possession is a highly technical one. Texas Law presecribes adverse possession under three (3), five (5), ten (10), or twenty-five (25) year limitations periods. Each of these periods, and their separate requirements (which differ in many respects), are set-forth in Chapter 16, Subchapter B, of the Texas Civil Practices & Remedies Code.



A detailed explanation the applicability and distinctions between the 3, 5, 10 and 25 year adverse possession periods could (and possibly will) be the subject of another complete blog posting. However, irrespective of which limitations period is implicated, proving title by adverse possession is complex and highly burdensome.



It is important to understand one 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). Inferences are never indulged in the adverse claimant's favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985). Accordingly, a landowner seeking to prove or acquire title to land by adverse possession should secure the advice, counsel and assistance of an experienced real estate lawyer.



Trey Wilson is an attorney in San Antonio, Texas, and princpal of R L Wilson, P.C. Law Firm. His Texas-wide practice focuses on real estate law, water law, construction law and evictions. he may be reached at 210-223-4100 or www.sa-law.com.

Landlocked Property in Texas? An "Easement by Necessity" May Exist

Have you bought or inherited real property in Texas, only to find that the property is landlocked, with no legal access to a roadway? Obviously such a finding can be devastating, as even the greatest parcel is virtually useless if it cannot be accessed by vehicle. This devastation quickly translates to financial havoc, as landlocked property is often worth a tiny fraction of the property's value with access. But, before you abandon all hope, you should consult with an experienced real estate lawyer to determine whether an "easement by necessity" or other right of access may be established through operation of various legal doctrines. You may be pleasantly surprised to find that Texas Courts frown upon landlocked property.

An easement is defined as “a right of use over the property of another.” Black's Law Dictionary 527 (7th ed.1999). Easements are common tools for both public and private parties, and touch each of our daily lives in less-than-exciting, but important ways. Utility service is brought to your home and workplace through use of easements, and many times government employees (including first responders such as Police, Fire and EMS) utilize easements in their public service. In fact, many cities and utility companies have an entire staff of employees dedicated to obtaining and managing easements. Thus, easements are an invisible but essential element of daily life in Texas.

Easements may be generally thought of as a grant of a "right to use" (or "license to use") certain property of another for a certain reason. Easements may be created in many ways, both consentual and involuntary, as well as express and implied. Further, easements are not absolute. “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In determining the scope of an easement, Courts "may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)).

Where landlocked property is concerned, Texas law governing "easements by necessity" are most often implicated (though there are other types of easements and dedications that should also be explored). This is because the landowner seeking an easement by necessity over a servient estate must show the necessity of that easement in accessing his property. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, writ denied); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984).
For an easement to be necessary, the property must be landlocked.

A party claiming an easement by necessity bears the burden of proving all the elements necessary to establish the easement. Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements are:

(1) unity of ownership prior to separation;

(2) access as a necessity and not a mere convenience; and,

(3) necessity existing at the time of the severance.

Koonce, 663 S.W.2d at 452 (citing Duff, 311 S.W.2d at 641).

Additionally, it should be noted that easements by necessity are temporary because their existence is dependent on the necessity that created them. Therefore, they terminate upon the cessation of the necessity.

Once the location of a way of necessity is established, its location may be changed only with the expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).

Many times individuals facing landlocked situations by trespassing on another's land to gain entry, or by obtaining a temporary access agreement from another landowner. Such practices are not fatal to proving an "easement by necessity" as “an easement by necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2006, pet. denied). However, the party seeking to establish an easement by necessity must prove he has no other legal access to his property. Id.

The party seeking to establish an easement by necessity also must prove that the necessity existed at the time the estates were severed. See Koonce, 663 S.W.2d at 452(an element necessary to establish an implied easement by necessity is that the necessity must exist at the time of severance of the two estates); Perkins v. Krauter Family P'ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.App.-San Antonio Sept.22, 2004, no pet.) (mem. op., not designated for publication) (holding same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied) (holding same as to an easement by implication).

The means and evidence necssary to prove each of the elements of easement by necessity are often complex, and hyper-technical. Texas landowners facing landlocked property situations are urged to immediately seek the counsel of an experienced real estate attorney. Such an attorney can advise upon the facts of your particular circumstance, assist you in exploring claims against the Seller of the landlocked property, as well as any title companies or other professionals associated with your acquisition of the landlocked property.

Trey wilson is an attorney and real estate agent in San Antonio, Texas. In September 2008 Scene in SA Magazine named him one of San Antonio's Best Real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com