11 Jan Adverse Possession of Cotenant Heirs
In 2017, the legislature codified a new adverse possession statute focusing on the adverse possession of cotenant heirs: Tex. Civ. Prac. & Rem. Code § 16.0265. Per the statute, Cotenant Heirs are those who simultaneously acquired an identical interest in the same property by intestate succession. Id. at (a). One or more of the Cotenant Heirs may adversely possess the property after a 15-year combined limitations period by following a process set out in the statute.
The adversely possessing Cotenant Heir, for a period of 10 years, must “(A) hold the property in peaceable and exclusive possession; (B) cultivate, use, or enjoy the property; and (C) pay all property taxes on the property not later than two years after the date the taxes become due” Id. at (b)(1). Furthermore, no other Cotenant Heir may have “(A) contributed to the property’s taxes or maintenance; (B) challenged a possessing cotenant heir’s exclusive possession of the property; (C) asserted any other claim against a possessing cotenant heir in connection with the property, such as the right to rental payments from a possessing cotenant heir; (D) acted to preserve the cotenant heir’s interest in the property by filing notice of the cotenant heir’s claimed interest in the deed records of the county in which the property is located; or (E) entered into a written agreement with the possessing cotenant heir under which the possessing cotenant heir is allowed to possess the property but the other cotenant heir does not forfeit that heir’s ownership interest.” Id. at (b)(2).
Once the ten years have passed, the adversely possessing Cotenant Heir may make their claim of adverse possession by (1) filing both an affidavit of heirship and affidavit of adverse possession in the County Real Property Records; (2) publishing notice of the claim in a newspaper for 4 consecutive weeks; and (3) providing written notice of the claim to the other Cotenant Heirs by certified mail with return receipt. Id. at (c).
After the filing of the affidavits, the other Cotenant Heirs may challenge the adverse possession by filing a controverting affidavit or by bringing suit against the adversely possessing heir within 5 years of the date of the affidavit. Id. at (e). Otherwise, title vests in the adversely possessing Cotenant Heir. Id. at (f).
If a title examiner relies upon the affidavits required by the statute, the examiner should bring the affidavits to the attention of the client.
It is still possible for the adversely possessing Cotenant Heir to adversely possess the property without utilizing this statute. However, the Cotenant Heir would need to prove, in addition to the usual adverse possession requirements, that the Cotenant Heir also ousted the other Cotenants.
Written by Brian T. Wittpenn, Senior Attorney at KM&D Law