Trespass?- Adverse Possession and Prescriptive Easements

Any person on another’s land without permission of the owner is a trespasser. However, if a trespasser is openly and continuously occupying or using a portion of your property for some purpose, the trespasser could gain legal title to or the legal right to use your property.   Two legal doctrines under Texas law that allow a trespasser to eventually gain legal claim to your property are the doctrines of “adverse possession” and “prescriptive easements”.

Adverse Possession

“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 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.  All situations require that the trespasser’s use of the property be:

  • hostile (without permission of the true owner),
  • with actual control,
  • exclusive (no others using the property),
  • open for anyone to see, and
  • continuous for the required period of time.

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 making improvement on the wrong parcel of land. 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.

Prescriptive Easements

Similarly, a trespasser who regularly traverses or uses a portion of your land can gain a “prescriptive easement” on your property.  A prescriptive easement is created by the party’s adverse actions under a claim of a right to of use.  The prescription grants the trespasser the legal right to use the property but not ownership rights.  Similar to adverse possession, the trespasser must show that he used the land openly, continuously, exclusively, and adverse to the owner for the requisite time. 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.  For the trespasser to gain a prescriptive easement, the easement must be well defined with specific recognizable boundaries.   In Texas, a party can gain legal claim to a prescriptive easement in ten years.  Once an easement is granted by a court and recorded in the county records it will “run with the land” and any future buyers of the land must continue to allow use of the easement. Defeating a claim to prescription of your land can be accomplished by simply blocking access or issuing permission to the trespasser.

Similar issues of land use can arise with existing easements.  For example, if the easement holder/user expands the scope of usage, in time he can gain the legal right to continue utilizing the easement in the expanded manner.  For example, if an easement is created for the purpose of accessing a residential property but the owner/user starts using the easement for commercial purposes adding more traffic and widening the path.  Another common issue involves the maintenance of the easement.  Texas law is clear that the easement holder/user is responsible for maintenance.  As well, the party who owns the land over which the easement traverses cannot by law interfere with use of the easement by the easement holder.

The laws concerning legal claims of adverse possession and easements can be complicated and each case is very fact specific. If you are facing a land use conflict related to these issues then contact us for a free consultation.  Call 512-921-5370 or email: info@BernickLegal.com.