Adverse Possession: Don't Try This At Home

Adverse possession, the law Ken Robinson cited to move into an abandoned Flower Mound home with the intention to claim the property as his own, was initially meant to settle and prevent property disputes in rural areas, according to Brian Rider, a University of Texas law professor who has been practicing real estate law in Austin for 39 years.

Rider, who is well-versed on the law but unfamiliar with the specifics of this case, boiled down the law's general concept: A person must occupy the property "openly, adversely [against the original owner] and exclusively," he said. And once they do so for a period of time that varies depending on the situation, they can obtain the rights to that property. As for the affidavit of adverse possession filed by Robinson, Rider said it's simply a public notice that strengthens the acknowledgment of adversity.

The property owner of record has five years to reclaim the land if the person occupying it pays taxes. The statute of limitations jumps to 10 years if the occupant is not paying taxes, Rider said. After that time period, the person claiming adverse possession can file a lawsuit to obtain the property title. If the original owner does not show up in court, it's likely that the person citing adverse possession will succeed. The burden is on the original owner to take back the land.

As for the mortgage holder, Rider said, "The mortgage holder has basically four years from the time the [owner] goes into default to assert its rights." But if the mortgage holder forecloses on the home, it becomes the owner of record, and adverse possession applies accordingly.

"If it was out on a field, you'd have to put up a fence and put your cows on it," Rider said. The statute was intended to resolve land disputes between neighbors, not to overtake property. "The adverse possession statutes apply in this [Flower Mound] situation, but they weren't really designed for a suburban or urban situation," Rider said.

Texas and states west of the Mississippi generally have shorter statutes of limitation. Northeastern states commonly have statutes of up to 30 or 40 years, compared with Texas' five, one of the shortest in the country, according to Rider.