Does Texas Have a 2 Year Adverse Possession Process?

Did I really say that? Yes, I did. Whether you believe this or not it is happening in Texas. A string of court of appeals cases going back to 2006 are holding that property owners cannot oust a trespasser who has caused permanent improvements on land if the suit is filed more than two years after the initial trespass. The courts of appeals are allowing trespassers to keep the property after two years instead of requiring them to go through the traditional adverse possession process under the three, five, ten or twenty-five-year adverse possession statutes because the case centers on whether the improvement is permanent or temporary.

Why would a trespasser need to file suit to quiet title after three, five, ten or twenty-five years of adverse possession when all they need to do is place “permanent” improvements on the land and then wait for the owner to complain. Now they can successfully defend the trespass suit by using the two-year statute of limitations under section 16.003 of the Texas Civil Practices and Remedies Code?

The most recent occurrence of this result is the case is from the Second Court of Appeals in Texas in the cases of RayMax v SBC Tower and RayMax v ATC, a companion cases where the court held that the two year statute of limitations barred all relief – damages, injunctive relief, and declaratory judgment relief to declare ones boundary lines.

The court effectively rendered section 37.004(c) of the Texas Civil Practices and Remedies Code as dead letter law. No party in that suit came out with a remedy. No one even knows what the property description is of the newly taken land or the leased premises. The decisions left the parties in an ambiguous state.

The Second Court of Appeals avoided citing to the Gearhart v. Wardell, 13-15-00096-CV, 2016 WL 7011402 (Tex. App.—Corpus Christi Dec. 1, 2016, no pet.) that was contrary to their decision. There the Thirteenth Court of Appeals held that only the damage claim is barred by the two year statute of limitations but injunctive relief is barred after the ten year statute of limitations.

The Second Court of Appeals is not alone. The court of appeals in Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876 (Tex. App.—Waco 2006, pet. denied) denied injunctive relief to remove trespassing underground cables based on the two year statute of limitations. The court held that the injunctive relief claim was moot.

The injury is not really permanent.

The idea that the injury to the real property is “permanent” is a legal fiction. In fact, in the RayMax cases involve valuable leasehold equipment that is required to be removed at the end of the lease term.

This area of the law is governed by a definition from the Texas Supreme Court that was supposed to clarify the definition of temporary or permanent injury cases. Gilbert Wheeler, Inc. v Enbridge Pipelines (E. Texas), L.P., 449 S.W. 3d 474, 480 (Tex. 2014) where the court reformulated the definitions of temporary or permanent injury in this way:

An injury to real property is considered permanent if (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated. Conversely, an injury to real property is considered temporary if (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.

This definition works fine if the case involves damaging trees on land but it does not work in the case of simple trespass or leasehold improvements that encroach on adjoining land which was what the courts were presented with in the RayMax cases. The RayMax cases involved a lease agreement and acquiring land outside of the lease agreement by defenses of adverse possession.
Gilbert involves damaging land and the measure of that damage.
RayMax involves temporary use of land and title to that land.
The two situations are not similar.