The Color-of-Title Act (which goes by the impressive legal designation 43 CFR 540, Subpart 254) refers to the right of a person, group, or corporation that has “evidence” purporting to have title to public lands administered by the Bureau of Land Management, to file what is known as a "color-of-title" claim… even if they only have a piece of paper.
Adverse possession is a legal concept that allows the person, group, or corporation occupying the property to claim the rights of ownership. Color-of-title claims are often raised in adverse possession cases.
A Clarification of Color-of-Title
Color-of-title refers to a document or other instrument that appears to be a legitimate claim of title to a piece of land but due to a title defect, cannot transfer or convey ownership. In plainer language, a scrap of paper without all the required elements of a clear deed of title could still be used to claim ownership via adverse possession.
If you can show the federal government that you have probable title for a piece of land claimed by the United States, you can file your own claim to buy the land at a "fair and reasonable price" and take clear title to it. This includes alleged titles based on land warrant, land right, land scrip, and irregular chain of title.
The Meaning of Adverse Possession
The legal doctrine of adverse possession allows an individual to claim rights to property that is, in fact, owned by someone else who holds actual deed and legal title to the property.
For example, if a neighbor continuously uses a private road owned by the person next door to reach the back of his property, that neighbor could eventually claim ownership rights to that private road. If the original owners haven’t objected, don’t fight the claim, or sometimes even if they do, property rights may be conferred on the neighbor who has been, in essence, trespassing all this time.
Each state defines and enforces adverse possession laws differently. In most, adverse possession favors the trespasser over the true owner. If the title holder brings suit after the statute of limitations has run out or never brings suit, regardless, the adverse possessor can quietly obtain title to property that isn’t really theirs.
The Requirements to Establish Adverse Possession
Again, requirements may differ between states or jurisdictions. However, many jurisdictions share common requirements to establish a case of adverse possession.
- Open and notorious occupation of the land by the person seeking adverse possession. Occupation may not be secretive or hidden. However, the landowner is not required to have actual knowledge of this act.
- Exclusive occupation of the land by the person seeking adverse possession. Occupation cannot be shared by the true owner or the public.
- Hostile occupation that is adverse to the interests of the true owner. If the owner has given permission in any form for the occupier to use the property, adverse possession may not be claimed. Again, the true owner is not required to know about the occupation for it to be considered hostile.
- Statutory period of occupation extending for a duration defined by the state. Depending on the jurisdiction, the statutory period may be anywhere from three to twenty years. Sometimes an adverse possessor may be allowed to add their period of adverse possession to a previous occupier’s period as long as occupation has been uninterrupted and continuous.
- Continuous and uninterrupted occupation including all other elements of adverse possession. However, continuous and uninterrupted may be defined as something like “used in season.”
Here are a couple of examples of two of the requirements:
A neighbor builds a fence. Ten years later, it comes to light that it is two feet over your property line. Although it sounds mild, in a legal sense this is considered hostile because you did not give permission for the neighbor to use your property this way.
Continuous and Uninterrupted
While every element of adverse possession must be met throughout the period of possession, the possessor can use property consistently with the type of property it is. If the adverse possession involves a seasonal property, such as a summer cottage, possession may be considered continuous and uninterrupted even though nobody occupies the property the other nine months of the year.
Statute of Limitations
There are limits on adverse possession. Adverse possession is not available for titles to government-owned land, for example. Also, the time for the original owner to bring suit is subject to a statute of limitations set by the state or jurisdiction.
In Texas, for example, you must sue to recover land held by another in adverse possession within three years after the day the cause of the action. The possessor must produce title or color of title conveyance documents to support the claim under this statute.
If the possessor cultivates, uses, or enjoys the property while paying applicable taxes on the property, and claims the property under a duly registered deed (not a forged deed), the true owner must bring suit within five years after the day the cause of action occurs.
Finally, a suit must be brought within 10 years against a possessor who cultivates, uses, or enjoys the property but without a title instrument. The claim is limited to 160 acres including improvements with few exceptions.
Adverse Possession in Texas
Adverse possession is controlled by state statutes and the courts. The burden of proof to establish a claim of adverse possession is on the trespasser. The person able to show legal title is considered the owner.
That being said, there is no single statute defining the required elements for establishing adverse possession. In Texas, adverse possession must be hostile, actual, exclusive, open and notorious, and continuous for the statutory period.
Other states may have a single period, say 10 years. In Texas, the owner is bound by the three, five, and ten-year limitations for bringing suit according to the establishment of color of title, showing cultivation of the property and payment of taxes, or lack of color of title or tax payments. The possessor must meet all the requirements of adverse possession in the case of the ten-year limitation. Also, the land volume is limited to 160 acres generally.
Intent counts for nothing in Texas. A trespasser may or may not be aware that the property under occupation is owned by another, but as long as that trespasser believes the property belongs to him or her and there is no consent from the true owner, the element of hostility is met.
According to David J. Willis, a real estate and asset protection attorney in Texas, legitimate adverse possession claims are rare. It isn’t often someone simply squats on private property with the intent to begin adverse possession, although it has happened. Most of the time, someone just takes control of a piece of land without seeking title or permission.
If you believe you have a case of adverse possession, search the CourthouseDirect.com database to establish title and consult an attorney to help you make your claim.