In March 2017, an East Austin Family received a ‘Notice to Vacate’ from the developers of a neighboring property. The Developers were in the process of tearing down the existing structure and building two new homes on the lot.
The Family had lived in the same property in East Austin for more than 55 years, but in 2017 the Developers claimed for the first time that the Family’s carport and fence encroached onto the Developer’s lot. The Notice to Vacate gave the Family just 3 days to vacate the disputed land or the Developers would file a lawsuit for forcible detainer seeking their eviction.
The Notice to Vacate also stated that the Developers had been suffering, and would continue to suffer special economic damages due to the encroachment, and that the Developers would seek a monetary judgment against the Family unless the carport and fence were removed within 3 days.
Pete Reid Law prepared a lawsuit against the Developers which included a request for a Temporary Restraining Order and a Temporary Injunction against the Developers.
The lawsuit also set forth claims for adverse possession, explaining that the Family were the rightful owners of the disputed property having possessed it continuously for the requisite time.
The concept of adverse possession is a centuries old legal principle that allows a person to claim title to another’s real property based on a history of occupation or possession.
Under Texas law, courts have interpreted every claim of adverse possession as encompassing at least six essential elements: (1) visible appropriation and possession of the disputed property; (2) that is open and notorious; (3) that is peaceable; (4) under a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6) consistent and continuous for the duration of the statutory period. Glover v. Union Pac. R.R., 187 S.W.3d 201, 213 (Tex.App.-Texarkana 2006, pet. denied).
It has been said that adverse possession requires “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.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex.2011).
The limitations period is usually 10 years, and almost without exception, the adverse possession must be challenged within 25 years.
Here, the East Austin Family were able to prove their use and possession of the disputed property for more than 50 years.
Latterly the parties entered into negotiations and a settlement was reached. The Developers agreed to pay a hefty lump sum to the Family to be able to use a portion of the disputed land, a strip measuring less than 19 inches at its widest point. The Developers also agreed to bear the entire cost of removing all existing fences and build a new six-foot-tall wooden privacy fence between the properties. Agreement was also reached for the Family’s carport to be removed and rebuilt.
Ultimately the Developers were able to finish their construction project, and the East Austin Family were well compensated for the inconvenience.