So as to not hijack the fence thread, I decided to start this one, since there are several chiming in on adverse possession and the purpose of the prescriptive rights, more commonly referred to as the 3, 5, 10 and 25 year statutes for claiming adverse possession.

I'll just start by saying these statutes are/were established to clear clouded title and to establish property lines when all evidence of original corners have been obliterated or lost. Even though there are cases established as "Trespass to Try title", these have nothing to do with actual tresspassing in the sense that was being discussed on the Fence Thread.

Just something to start the discussion. Since I'm at work, I will try to get back as often as possible, but will most likely take this back up when I get home this evening.

Though I agree with you that the intent of Adverse Possession is to clarify who the legal owner is, trespass had to occur at some point based on the definition given in the other post. Even in the ugliest of Adverse Possession cases, the rightful owner doesn't have much of a leg to stand on in the case of trespass.

A few years ago, a relative of mine bought some land from a local family who no longer farmed. As I understand it, one of the members of the family didn't agree to the deal, but the sale went through anyway.

I assume that with the three year statute, that member of the family would not prevail if he came back now and challenged the sale saying that it wasn't proper without his agreeing to the sale.

I assume that this is the kind of situation that the three year statute was created to cover.

The 3 year statute was created to protect the purchaser who bought the land under good or presumed good color of title. There runs a 3 year period which allows the person who actually claims title to challenge, but in most cases will fail in court.

It sounds like the person that did not want the sale to go through was not an actual owner of the land, and without any legal claim to the land through record. He may have just been a family member that did not want to see the land sold and did not have any legal say in the matter.

Also, if there are more than one owner of a tract, if one party wants to sell and the other member or members of ownership can't afford to buy them out, the entire property can be put up for sale, if a partition is not conducted and agreed to.

Doc,

If not for an unfortunate situation I'd still be in land surveying and sitting for my SIT in October. When I'm done with school (or sooner if feasible) I'd like to get back into surveying. LSLS being my ultimate goal.

Who do you work for? and where? I'd like to know more about what the existing LSLS population is doing.
shoot me an email if you wouldn't mind....
normaleagle at g mail dot com

email sent

Thanks..replied.

Doc:

I seem to recall that the original adverse possession laws (a/k/a squatter's rights) were enacted to discourage absentee ownership. Has it now evolved to be more of a curative tool?

You said you deal with it frequently? I don't remember a quiet title action in a chain of title in my +/- 25 years of experience in real estate (albeit not all dealing with land titles). I have seen some clouded titles that needed something like this.

It's like I originally stated, that most of these statutes of limitations are mainly used, now, to create clear title on land.

You are correct about the 10 year statute being created to make sure people stay familiar with their properties and are cared for.

The main thing I have come up with adverse possession are people disputing the location of their fences in regards to original property lines. It has been asked of me which statute I would recommend they try to file under to take the land. They build a new fence on their neighbors property, taking in 10-20 feet of land and then try to file adverse possession on it at a later time.

99.9% of the time they won't be successful, due to the fact they did not have the property surveyed by a Registered Surveyor, they built the fence themselves without notifying the adjoining land owner, and built it with the intent of trying to steal land. Constructing a fence is, IMO, not considered "Open and Notorious" by statute definition.

The majority of the time, I have been successful in resolving any potential problems by referring my clients to a specific attorney to work up a property line agreement, they can both live with, due to court costs to resolve minor boundary disputes.

Doc:

Again, I am not going to disagree with your statement, but I believe it does need a little supplement. You are absolutely correct that adverse possession helps cure land titles. This law is of course statutory (it is contained in the Civil Practice and Remedies code). However, one cannot create the purpose of a statute out of whole cloth, especially when that statute is based on common law going back hundreds of years (the Texas legislature didn't make this up - and I understand this even goes back to Roman times and was statutory).

As I stated in the other thread:

quote:

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Doc, while I am not going to totally disagree with you, I do disagree with that statement. Your entire post makes an important point that adverse possession laws are to clear up title, but that's not the entire point.

1. Adverse possession statutes are statutes of limitation that apply to trespassing and other causes of action concerning real property title.

2. Adverse possession is great for clearing up land titles. However, the policy reasons of adverse possession are also to encourage people not to sit on their legal rights and to use land to highest and best use.

Saying that adverse possession's sole purpose is to clear land titles would be akin to saying the statute of limitation on conversion (civil theft) is to clear titles to personal property.

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One thing I would like to add is that you use the term "prescriptive rights". I would assume that you consider that a prescriptive easement falls within the concept of adverse possession. Legally speaking though, they are two totally distinct things. Adverse possession effects the divestment of title in the original owner due to the statute of limitations, and prescription effects the creation of a right that did not ever exist [the easement]).

Under a prescriptive easement, the owner of the alleged servient estate is precluded from bringing suit for trespass against the owner of the alleged dominant estate because the statute of limitations has run.

I do not see how prescriptive easements "clear" land titles. I believe that prescriptive easements are meant to discourage landowners from sitting on their rights and to protect their property from trespassers.

If I'm purchasing land that shares un-fenced property lines with neighbors, would a warranty deed and / or title insurance protect me, as the new owner, if there were any claims for adverse possession from one of the neighbors against the original owner, or earlier owners?

The example of land that I am thinking of is East Texas timber land. The land in question has changed hands several times in the last two decades, yet the neighbors (other timber companies) have been there for generations.

If one of those neighbors has been planting, maintaining, and harvesting pines across the property line within the limitations of this law, is there a risk that they could claim ownership after the property in question is sold to me?

"Prescription is a title by authority of law, deriving its force from use and time."

Prescription is a terminology that can be used to describe access to anothers property and also for the time period for which adverse possession is required.

Also, keep in mind that prescriptive access rights can not be achieved on a joint usage roadway. IE: if the land owner in which the road exists is used by the land owner and another party, that uses that road to access their property, the second party can never obtain an easement by prescription. In essence they can be cut off from their property, no matter how long they have been using that road. Unless both properties were previously owned by the same person and/or the properties were out of the same original survey.

Neches21, there is that possibility. I would agree to follow up with the title company and see if they guarantee the acreage and legal description provided to them. If not, I would strongly suggest having a surveyor mark the property lines and errect a fence at your earliest convenience, showing your claim of your land.


[This message has been edited by Doc Hayworth (edited 4/20/2011 8:27a).]

quote:

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Also, keep in mind that prescriptive access rights can not be achieved on a joint usage roadway. IE: if the land owner in which the road exists is used by the land owner and another party, that uses that road to access their property, the second party can never obtain an easement by prescription. In essence they can be cut off from their property, no matter how long they have been using that road. Unless both properties were previously owned by the same person and/or the properties were out of the same original survey.

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I have had several cases where my client "won", and several cases where my client "lost", because there wasn't "exclusivity". Prescriptive easements are extremely difficult to acquire especially these days. In my experience (and I do a lot of adverse possession/prescriptive cases) exclusivity is the most difficult element to prove.

Correct, in order to obtain a prescriptive easement, it must be exclusive.

Just something I came across to justify my usage of prescriptive rights along with adverse possession. Not intended to start an argument.


"3. Prescriptive Easement
A prescriptive easement arises if someone uses part of your property without your permission. A prescriptive easement involves only the loss of use of part of a property, for example a pathway or driveway. Payment of property taxes is not required, as it is to obtain title by adverse possession. Adverse possession of a prescriptive easement involves the loss of an entire property by open, notorious, hostile adverse and continuous use.

The legal test to acquire a prescriptive easement of another owner is that the use must be (a) open, not secret, (b) notorious, clearly observable, (c) hostile, without the landowner's consent and (c) continuous, without interruption for the number of years required by state law. For example, the minimum hostile use varies from 5 years in California to 30 years in Texas.

The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land. Prescriptive easements can be shared, that is, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive claimants.

To perfect a legal prescriptive easement, the hostile user must bring a quiet title lawsuit against the property owner and prove all the open, notorious, hostile and continuous use requirements.

If, after purchasing your property, you suspect that a neighbor is using land with belongs to you, that person or neighbor being a "hostile user", you can choose to grant permission to your neighbor thus preventing a permanent prescriptive easement from arising. Permission should be documented such as by a letter to the hostile user."

Also, not trying to create an argument, but the quote below leads me to believe the party doesn't know what they are talking about - fence lines have nothing to do with easements. And, if the part about the prescriptive easement not needing to be exclusive is true, I'd sure like to see that case - I could use it in a case I've got going right now; but, on the other hand, I might not want to see it on another case I have Now, Texas cases have allowed for acquisition of prescriptive rights by the public, but there needs to be some kind of maintenance by the government in addition to the other elements.

quote:

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The most common prescriptive easement arises when a fence is erected several feet on the wrong side of a boundary line. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land. Prescriptive easements can be shared, that is, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive claimants.

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I think the text you got was from Avvo.com. The guy was a California attorney and posted two incorrect conclusions:

1. The question asked of him was whether an individual could repossess a city easement through adverse possession. He states in his answer:

quote:

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You would be the hostile user of the city's easement but the question I have based on your question is whether you have used that property over whatever continuous period is required by Missouri law.

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Absent legislation to the contrary, a private party cannot adversely possess lands belonging to a governmental entity.

2. He states

quote:

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For example, the minimum hostile use varies from 5 years in California to 30 years in Texas.

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Texas is a 10 year state (based on the courts' application of CPRC 16.026), not a 30 year.


3. The guy devotes 100% of his practice to criminal law.


Of course, I may be wrong and you didn't get your response text from Avvo.com.

[This message has been edited by queso1 (edited 4/20/2011 10:15a).]

One more thing:

I'm not going to argue regarding whether adverse possession and prescriptive easements are related. When explaining a prescriptive easement to my students or my clients, I always begin with an explanation of adverse possession and how they are related.

Not getting any argument from me. I agree with your assessment of the prescriptive right vs. the constructed fence. It seems they are comparing apples to oranges.

BTW, where do you teach? Tyler?

Terminologies used by a lot of surveyors, in some part are not with the full context of the definition. And I am one to admit my guilt with that.

Also, if you ever happen to be around a bunch of LSLS's and an old stone mound, see how many agree that it is actually a stone mound. Back in 1986, when I was with W.C. Wilson, when he established the geographic center of Texas, East of Brady, We were kept entertained by the disagreements among the LS's.

I teach a real property law (or real estate law - not sure) course at Blinn for the real estate department. It's fun and the kids are really good.

Doc,
would you mind sharing your contact info with me as well? I'd love to be able to have you as a contact.


Thanks!

Got it! Thanks Doc!


Now the thing that I call livin' is just bein' satisfied with knowin' I got no one left to blame

[This message has been edited by Dough (edited 4/20/2011 2:28p).]

Wow,

I have never seen so much non-argument in a thread before.