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.

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.