In our final installment of “Understanding Adverse Possession” we examine how the existence of a co-tenancy can affect a claim of adverse possession: is it possible for one cotenant to gain ownership through adverse possession against another cotenant?
A co-tenancy exists when two or more parties concurrently own interests in the same property, as in joint ownership or a landlord/tenant relationship. This type of joint property ownership can result in a heavier burden of proof being placed on the adverse possessor; by validly owning an interest in the property, a cotenant has rights to ownership and usage that a stranger to title, as discussed in the first three parts of this series, would not. Even if only one cotenant is in possession of property, such possession may be allowed based on the tenancy agreement or nature of ownership. The Texas Supreme Court’s decision in Alexander v. Kennedy (19 Tx. 488) indicates that between cotenants, the intent behind a cotenant’s actions is particularly key; acts by a stranger which may establish adverse possession under other circumstances may be permissible in a co-tenancy.
As we noted in Part One of this series, adverse possession involves “a claim of right that is inconsistent with” the claim of another. However, by definition, the rights of cotenants are owned concurrently, and therefore, consistently. For adverse possession to occur between cotenants, then, there must first be a notice of repudiation, or ouster, of the co-tenancy. According to the decision in Hardaway v. Nixon (544 S.W.3d 402), along with the other elements of adverse possession, a cotenant must demonstrate “unequivocal, unmistakable, and hostile acts” taken to possess against other cotenants.
In Tex-Wis Co. v. Johnson (534 S.W.2d 895) the court ruled in favor of King, a holdover tenant, who remained on the property at issue for 53 years following the foreclosure and resale of his interest. The new record title owner argued that there must be a change in the character of the possession by King in order for him to have established ouster, and since there was no evidence that King had changed the nature of his possession since the foreclosure, no notice of repudiation was given. The Supreme Court of Texas disagreed with the record title owner, holding instead that if actual notice of repudiation of the relationship is not given, as in this case, the notice of repudiation can be inferred by either (i) a change in the use or character of possession by the adverse possessor (being the previous rule of actual notice); or (ii) long-continued possession under claim of ownership coupled with a non-assertion of claim by the record title holder (being a rule of constructive notice which would be a question of fact for a jury). In Easterling v. Williams (279 S.W.2d 907), the court officially established that the statute of limitations period begins upon actual or constructive notice. Although the burden is on an adverse possessor to prove their claim, a cotenant does bear the burden of exercising diligence in protecting their rights.
Republic Prod. Co. v. Lee (121 S.W.2d 973) set the early standard for using a conveyance to establish ouster of a cotenant, which was further developed in Sadler v. Duvall (815 S.W.2d 285) and Evans v. Covington (795 S.W.2d 806). Examining the three cases in conjunction with one another, we see that a partition between some, but not all, cotenants of an entirety of a piece of property, followed by typical possession, served as ouster; the recorded partition and later conveyances by the partitioning cotenants served as constructive notice to successors of the non-partitioning cotenant. Additionally, conveyance of a purported 100% fee interest in the disputed land by one cotenant to a third party would be sufficient to establish ouster of the other cotenant. However, the specific sale of only an undivided interest would be insufficient to establish ouster; the grantee in this instance would become a cotenant with the remaining original cotenants.
Issues relating to co-tenancies resulting from intestate inheritance prompted the addition of Section 16.0265 to the Texas Civil Practice & Remedies Code, which applies to cotenants who “simultaneously acquire identical, undivided ownership interests in, and rights to possession of, the same real property by operation of the applicable intestate succession laws of this state or a successor in interest of one of those persons.” Under this statute, a cotenant heir may acquire a property by adverse possession against the other cotenant heirs, if for a period of ten years, the claimant heir or heirs exclusively possess the property, cultivate or use the property, and pay taxes, all while no other cotenant heir contributes to the property, challenges the possessing tenant’s possession, expressly allows the cotenant to possess the property, or otherwise asserts her rights with regard to the party.
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