Understanding Adverse Possession: Part One

Understanding Adverse Possession: Part One

Adverse possession is a doctrine under which a person in possession of land owned by another party may acquire valid title as long as certain statutory requirements are met. In other words, an adverse party may obtain title to property they do not own if they possess it long enough under certain conditions. This doctrine not only applies to the surface estate in the affected land, but may apply to the mineral estate as well. Broughton v. Humble Oil & Refining Co., 105 S.W. 2d 480 (Tex. Civ. App.-El Paso 1937, writ ref.’d). Establishing whether the surface and mineral estates are severed, and more particularly when they were severed, will determine how adverse possession law will be applied by Texas courts. The following factors should be taken into consideration when it appears there may be an adverse party in your chain of title.

Elements of Adverse Possession

Texas law defines adverse possession as “an actual and visible appropriation of real property . . . under a claim of right that is inconsistent with and is hostile to the claim of another person” (Tex. Civ. Prac. & Rem. Code Sec. 16.021). Elements which may allow a party to establish a claim of adverse possession include purported conveyances of the land; actual possession/inhabitance; use and cultivation of the land; enclosure of the land by fence or boundary; and payment of taxes. Possession should be exclusive and continuous; if multiple parties make use of the land for intermittent periods throughout time, adverse possession has not occurred. If anybody can access the land at any time, including parties not claiming possession, adverse possession has not occurred. Depending on which factors exist, an adverse possessor would need to possess the land for statutory periods of three, five, ten, fifteen, or twenty-five years. A party who successfully possesses the land in question for the relevant period of time, and is able to prove the statutory elements, is said to have “perfected” a claim of adverse possession and may seek a court’s determination that he has obtained full legal title.


Understanding if and when severance between the mineral and surface estate occurred is key to handling adverse possession issues. Severance occurs when an owner of real property separates ownership of one or more aspects of the property from others, such as splitting the surface estate apart from the mineral estate, or splitting ownership of oil from ownership of gas. Severance may occur through conveyance, inheritance, or leases, and may be for the whole or a part of the estate. For example, a property owner may convey her land and reserve half of the minerals. The surface estate would be owned 100% by the grantee, and the mineral estate 50% by the grantee and 50% by grantor; because the grantor’s 50% mineral interest is separate from any surface interest, her interest has been fully severed.

In our next installment we will discuss how the timing of possession – before or after severance – affects a party’s claim of adverse possession.

Kuiper Law Firm, PLLC specializes in oil and gas issues; if you have any questions about how the information in this article applies to you or your business, do not hesitate to contact us.

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