Trespass? – Adverse Possession and Prescriptive Easements

Any person on another’s land without permission of the owner is a trespasser. However, if neighbors or other persons are frequently and openly occupying your property, or using a portion of your property for some purpose, those persons could gain legal title to or the legal right to use your property through the legal doctrines of “adverse possession” and “prescription”.

“Adverse possession” is the legal doctrine that allows trespassers to gain ownership of your land.  A trespasser can gain possession of your property by making improvements and/or through continuous use and possession. Similarly, you may need to assert a claim of adverse possession over someone else’s property if you believe, that under the state law, you have earned the right to legal title. The purpose of the doctrine is to promote the public interest of putting land to its best use. If a landowner has forgotten or neglected property but another has shown a willingness to put the property to good use, or if it would be a hardship on the adverse possessor to be removed from the land, then the adverse possessor can gain legal title if other specific requirements are met. In Texas, a trespasser can claim title to a property in as little as three years with some color of title, i.e. a disputed deed or title transfer. Even without color of title, a trespasser can gain title to property in five years by paying the taxes and maintaining the property. After 10 years, a trespasser in Texas can gain ownership of your property without paying any taxes and simply meeting the other requirements.

Similarly, a trespasser who regularly traverses your land without invitation or permission can gain a “prescriptive easement” on your property. The easement grants the trespasser the legal right to use the property but not ownership rights. For example, if a neighbor routinely drives across part of your land to access his own property he could eventually claim a possessory right to use the driveway. Or if a neighbor places utility equipment, such drains or power lines, across your land he could eventually gain legal right to leave the equipment on your land.  In Texas, a prescription of land for an easement requires the use of the easement for a period of 10 years.

If you are facing a claim on your land for adverse possession or prescription of an easement, or if you believe your continuous possession and use of land may entitle you to a possessory interest, contact Andrew Bernick for a free consultation by calling 512-763-5370 or email Andrew@BernickLegal.com.

Trespass? – Adverse Possession and Prescriptive Easements