Is the Doctrine of Adverse Possession Making a Comeback?

Gianna Scatchell Columns, law school, Lawyer

Adverse possession was one of the only real property subjects I could tolerate. But every time I read a case, I just could not help but wonder, “who actually would leave their house?” Enter the Housing Crisis of 2008, and homes became the proverbial hot potato with people trying to pass the keys.

Enter Kenneth Robinson, a man who purchased a $300k Texas home for $16. Say what?! The owners of this beautiful home in Flower Mound Texas “abandoned” their home when it went into foreclosure. Mr. Robinson moved in this home as a squatter and began researching his rights under the nifty little doctrine of adverse possession. He believes that his action will prevail under Texas’ adverse possession law.

Not for nothing, but if I was trying to score a house under adverse possession—the last thing I would want to do is attract national media attention. Instead, I would scale back the “open and notorious” requirement to getting my mail sent there, hosting neighborhood BBQ’s, and other things that would not garner national exposure. But, I digress.

Each state has its own set of laws that govern adverse possession. In order to hold real property adversely, the squatter’s posession must be:

  1. Actual and exclusive (e.g. not sharing occupancy with the owners);
  2. Hostile and adverse (was not given permission);
  3. Open and notorious (e.g. occupying the property as an owner would occupy);
  4. Continuous (no interruption for the statutory period usually between 3-20 years); and
  5. Peaceable (no physical eviction or eviction by the court).

Bringing you back to 1L Real Property, the purpose behind the adverse possession doctrine is that where the title holder of the property is put on notice that there is a trespasser on the land and does nothing about it, the owner waives his or her right to bring an action to eject the trespasser. The statute of limitations begins to run when the trespasser occupies the property. Showing ownership becomes thornier when 1. the owner abandons the property; 2. the bank takes over the property; 3. the deed has been bought and sold by several banks; and 4. the purported bank owner cannot produce the note. Now who’s the owner? If the owner cannot be produced during the statute of limitations period, then the true owner waives his or her right to the property, and the property will vest in the trespasser who then receives perfect title.

With the massive inventory of foreclosed homes each bank has on the books—how will they keep track of these properties? As such, I foresee that the adverse possession doctrine will soon be popping back up into the court system as more and more squatters of foreclosed properties wise up and the banks continue to bury their heads in the sand.


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