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Texas Property Law: Adverse Possession Against a Co-Tenant

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:

  • “… conveyance by one co-tenant to a stranger, or by one or more co-tenants to another co-tenant, purporting to convey the entire common property, when followed by actual adverse possession, amounts to a disseizin of the non-participating co-tenant; and record of such conveyance, followed by possession, constitutes notice of the repudiation.” Rife v. Kerr, 513 SW 3d 601 (Tex App. 4th Dist. 2016)
  • “… repudiation of the claim of a co-tenant and notice thereof may be shown by circumstances and that a jury may infer such facts from long continued possession of the land under claim of ownership and non-assertion of claim by the owners.” Tex-Wis Company v. Johnson, 534 SW 2d 895 (Tex. Supreme Court 1976)

Texas Property Law: Facts of Hardaway

In Hardaway, the land involved was 147.5 acres in Karnes County. The two families at issue were the Eckfords and the Korths. In 1896, the owner of the acreage, a certain Louis Eckford died. Under Texas laws of inheritance at the time, half of the acreage went to his widow and the other half to their nine children. The widow sold portions of the acreage to members of the Korth family.

The widow Eckford died in 1928 and, in 1939, in probate proceedings, her court-appointed representative sold all of the property — the entire 147.5 acres — to Fritz Korth. Mr. Korth’s family occupied the property until Mr. Korth’s death in 1948. Mrs. Korth and her sons, Fred and Romeo, remained on the property until 1954 when Mrs. Korth and Fred conveyed their interests to Romeo. Thereafter, Romeo Korth and his wife and children continued to live on the entirety of the land. In 1978, Romeo and his wife executed a gas and oil lease with Texas Oil & Gas. Their descendants continue to reside on the acreage.

At no point in over 100 years did any descendant of the Eckfords make a claim or assert a right to the any portion of the 147.5 acreage. In 2012, however, two companies, Burlington Resources Oil & Gas Company (“Burlington”) and West 17th Resources, LLC (“West 17th”), decided that there was a possibility that the heirs of the Eckford children owned one-half interest in the 147.5-acre tract. As a result, Burlington and West 17th sought out and entered into mineral leases with some of the numerous Eckford heirs. Burlington also instituted a receivership proceeding.

Texas Property Law: Legal Proceedings

 The Korth heirs intervened in the receivership action, alleging sole ownership of the entire 147.5-acre tract based on several theories, including adverse possession against the purported Eckford co-tenants. The Korth’s motion for summary judgment was granted by the trial court based on constructive ouster and subsequent adverse possession.

However, as noted, the Court of Appeals reversed. According to the Court of Appeals, the Korth’s summary judgment filings did not contain any evidence of “unequivocal, unmistakable, and hostile acts” taken by the Korths to oust or disseize the Eckfords. As the Court stated:

“After reviewing the Korth Heirs’ motion for summary judgment — as well as the arguments in their appellate brief — we hold that with regard to constructive ouster, they alleged only that they were entitled to summary judgment based on their long-continued possession under their claim of ownership by way of the 1939 administrator’s deed or 1978 mineral lease, and the non-asssertion of a claim to the property by the Eckford heirs until 2012.”

Frankly, based on controlling Texas case law, it may be that the Court of Appeals was mistaken. Based on cases like Tex-Wis, King Ranch and Rife v. Kerr, the Korths apparently presented the evidence required by Texas law, even at the summary judgment stage. Possibly just a bit more evidence in the summary judgment record of hostile acts of ouster would have won the day.