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The Common Law: Community Garden Squatter

Community garden squatter – can I adversely possess the abandoned lot next door?

By Luke Ellis, Fri., Jan. 3, 2014

Can I Adversely Possess the Abandoned Lot Next Door?

I've lived directly across the street from an abandoned house for years. The city recently demolished the house (it was a safety hazard) and now it's just an empty, run-down, abandoned lot. Based on discussions with the city and independent research, it seems the lot passed via inheritance to multiple family members living out-of-state, none of whom maintain it. My dream is to turn the lot into a community garden. I've heard that if we use the property long enough, eventually our community garden organization will own it. Can we gain ownership over the empty lot by using it as a community garden?

In theory, yes; however, it is unlikely, and I advise against trying.

By operating the community garden without the owner's permission, you would essentially be trespassing. There are certain situations under Texas law where a trespasser can enter another's property, use the property, and eventually gain legal ownership of it. While people sometimes refer to this as "squatting", the legal term is "adverse possession," which means the occupation of property for an extended period of time by a person that does not legally own the property.

Adverse possession creates harsh results — it allows real estate to be taken from its record owner without their consent and for no compensation. As a result, Texas law makes it difficult to adversely possess another's property. Texas law states that there must be an actual and physical appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Texas courts interpret this language to require the following elements of possession:

Actual, peaceable, and physical (actual physical possession of the property and peaceable exclusion of others from it); hostile (possession without the owner's permission); open and notorious (the possession is readily visible to onlookers); and continuous (possession must last for the entire period required by law; sporadic possession doesn't qualify).

Different time periods (three, five, 10, or 25 years) may apply to satisfy adverse possession depending on the specific fact scenario. In your case, assuming you will not have a deed or pay taxes, you would have to adversely possess the property for at least 10 years. The true owner could interrupt your use, reestablish ownership, and assert a trespass claim against your organization (or specific individuals) at any point during this 10-year window.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Johns, Marrs, Ellis. & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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