Adverse Possession Against Cotenant Heirs in Texas

Joint Owners Adverse Possession

It is common for a person to inherit partial ownership (e.g. an undivided 1/4 interest) in real property from a relative, thereby becoming joint owners with another family member. Often times, our firm receives calls from potential new clients explaining that they inherited a property owned by multiple heirs many years ago and have been living on the property, maintaining the property and paying property taxes. Often the potential new client's possession has been exclusive of any of the other heirs, and all of the costs associated with the property have been paid without assistance of the other heirs.

The question is whether the potential new client in the above example now has full title to the real property via the legal doctrine of adverse possession. If the example did not involve one joint owner trying to adverse possess against another owner, our analysis would focus on the limitations period of 10 years. The 10 year limitations period for adverse possession requires the property to be held in peaceable and adverse possession by another who cultivates, uses or enjoys the property. Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (West).

However, since we have a cotenant situation, there is a higher standard that applies. Historically, Texas courts have required an ouster of a co-owner before any adverse possession limitations period would begin to accrue. There is much debate among the courts as to what constitutes an ouster, but one court has said the claimant must prove actual or constructive notice of the ouster, and the clear, unequivocal and unmistakable repudiation of the common title. Dyer v. Cotton, 333 S.W.3d 703, 713 (Tex. App. 2010).

To clarify the process by which cotenants may adverse possess real property against other owners, the legislature recently enacted Section 16.0265 of Civil Practice & Remedies Code, effective September 1, 2017 and titled Adverse Possession by Cotenant Heir: 15-Year Combined Limitations Period. Generally, to perform an ouster, one cotenant must (1) file an affidavit of heirship and an affidavit of adverse possession in the real property records (2) publish notice of the adverse possession claim in a local newspaper four weeks in a row and (3) send notice of the claim for adverse possession to the last known addresses of all other cotenants. Tex. Civ. Prac. & Rem. Code Ann. § 16.0265 (West).

If five years from the filing of the affidavits pass without the other cotenants filing a controverting affidavit, title vests in the cotenant claiming adverse possession. Id. Adverse possession by a joint owner is a complex process that should be navigated by a competent real estate attorney. Additionally, because the codified process is so new, there is no case law interpreting Section 16.0265 as of the date of this article. Until case law is developed around the statute, there will be many variables and unknowns concerning adverse possession among joint owners.

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