The recent case of Hardaway v. Nixon, decided by the San Antonio Court of Appeals, provides an example of the doctrine of adverse possession as it relates to co-tenants. The trial court granted summary judgment in favor of the landowners claiming adverse possession. The Court of Appeals reversed and held that a presumption of ouster could not be affirmed on summary judgment merely on proof of long-continued possession — 75 years — even in the absence of a claim of ownership by the non-possessory co-tenants. According to the Court, no evidence was presented in the summary judgment record that the owners undertook “unequivocal, unmistakable, and hostile acts” and mere possession and lack of a claim of ownership by non-possessory co-tenants was not sufficient to “disseize” the non-possessory co-tenants.
Texas Property Law: Adverse Possession Against a Cotenant
Under Texas law, adverse possession with respect to a co-tenant requires proof of “ouster” or “repudiation” of the co-tenant’s claim to ownership. Ouster/repudiation is generally shown by various “unequivocal, unmistakable, and hostile acts” taken by the tenant in possession to oust or disseize the non-possessory co-tenant, but can also be shown by long continued possession. Aside from actually fencing, locking, and taking other “hostile” acts to repudiate a co-tenant, there are two other circumstances in which Texas courts have recognized ouster/repudiation and notice: