§ 16.0265.Adverse Possession by Cotenant Heir: 15-Year Combined Limitations Period

Title 2. Trial, Judgment, and Appeal · Subtitle B. Trial Matters · Chapter 16. Limitations · Subchapter B. Limitations of Real Property Actions · Last amended 2017 · Last verified August 29, 2026

In one sentenceSection 16.0265 lets one heir take the interests of the other heirs in inherited property after ten years of exclusive possession plus a five-year notice period — a fifteen-year path built for heirs' property.

Full Text of § 16.0265

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h) (i)

(a)In this section, "cotenant heir" means one of two or more persons 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.

(b)One or more cotenant heirs of real property may acquire the interests of other cotenant heirs in the property by adverse possession under this section if, for a continuous, uninterrupted 10- year period immediately preceding the filing of the affidavits required by Subsection (c):

(1)the possessing cotenant heir or heirs:

(A)hold the property in peaceable and exclusive possession;

(B)cultivate, use, or enjoy the property; and

(C)pay all property taxes on the property not later than two years after the date the taxes become due; and

(2)no other cotenant heir has:

(A)contributed to the property's taxes or maintenance;

(B)challenged a possessing cotenant heir's exclusive possession of the property;

(C)asserted any other claim against a possessing cotenant heir in connection with the property, such as the right to rental payments from a possessing cotenant heir;

(D)acted to preserve the cotenant heir's interest in the property by filing notice of the cotenant heir's claimed interest in the deed records of the county in which the property is located; or

(E)entered into a written agreement with the possessing cotenant heir under which the possessing cotenant heir is allowed to possess the property but the other cotenant heir does not forfeit that heir's ownership interest.

(c)To make a claim of adverse possession against a cotenant heir under this section, the cotenant heir or heirs claiming adverse possession must:

(1)file in the deed records of the county in which the real property is located an affidavit of heirship in the form prescribed by Section 203.002, Estates Code, and an affidavit of adverse possession that complies with the requirements of Subsection (d);

(2)publish notice of the claim in a newspaper of general circulation in the county in which the property is located for the four consecutive weeks immediately following the date the affidavits required by Subdivision (1) are filed; and

(3)provide written notice of the claim to the last known addresses of all other cotenant heirs by certified mail, return receipt requested.

(d)The affidavits required by Subsection (c) may be filed separately or combined into a single instrument. The affidavit of adverse possession must include:

(1)a legal description of the property that is the subject of the adverse possession;

(2)an attestation that each affiant is a cotenant heir of the property who has been in peaceable and exclusive possession of the property for a continuous, uninterrupted period during the 10 years preceding the filing of the affidavit;

(3)an attestation of cultivation, use, or enjoyment of the property by each affiant during the 10 years preceding the filing of the affidavit;

(4)evidence of payment by the affiant or affiants of all property taxes on the property as provided by Subsection (b) during the 10 years preceding the filing of the affidavit; and

(5)an attestation that there has been no action described by Subsection (b)(2) by another cotenant heir during the 10 years preceding the filing of the affidavit.

(e)A cotenant heir must file a controverting affidavit or bring suit to recover the cotenant heir's interest in real property adversely possessed by another cotenant heir under this section not later than the fifth anniversary of the date a right of adverse possession is asserted by the filing of the affidavits required by Subsection (c).

(f)If a controverting affidavit or judgment is not filed before the fifth anniversary of the date the affidavits required by Subsection (c) are filed and no notice described by Subsection (b)(2)(D) was filed in the 10-year period preceding the filing of the affidavits under Subsection (c), title vests in the adversely possessing cotenant heir or heirs in the manner provided by Section 16.030, precluding all claims by other cotenant heirs.

(g)A bona fide lender for value without notice accepting a voluntary lien against the real property to secure the adversely possessing cotenant heir's indebtedness or a bona fide purchaser for value without notice may conclusively rely on the affidavits required by Subsection (c) if:

(1)the affidavits have been filed of record for the period prescribed by Subsection (e); and

(2)a controverting affidavit or judgment has not been filed during that period.

(h)Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160 acres. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(i)Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor's claim extends to the boundaries specified in the instrument.

End

Plain-English Summary

When land passes by intestacy to several heirs, each takes an undivided interest and each is entitled to possess the whole. That makes ordinary adverse possession between them close to impossible, because possession by one is not hostile to the others. This section supplies a route, and it is deliberately slow.

The first ten years are substantive. The possessing cotenant heir must hold the property in peaceable and exclusive possession, cultivate, use, or enjoy it, and pay all property taxes within two years of when they came due. And no other cotenant heir may have contributed to taxes or maintenance, challenged the exclusive possession, asserted a claim such as a right to rent, filed notice of their interest in the deed records, or entered a written possession agreement. Any one of those acts by any other heir defeats the claim.

The next five years are procedural. The possessing heir files an affidavit of heirship and an affidavit of adverse possession in the county deed records, publishes notice for four consecutive weeks, and sends written notice by certified mail to the last known addresses of all other cotenant heirs. Any other heir then has five years to file a controverting affidavit or sue.

If nobody does, title vests in the possessing heir — and a bona fide purchaser or lender may rely conclusively on the recorded affidavits.

The design answers a real problem: family land fragmenting across generations until nobody can sell, insure, or borrow against it. The fifteen-year total and the notice requirements are the price of a mechanism that takes one family member's property and gives it to another.

Frequently Asked Questions

Can one heir take the whole property from the others?

Only through this section, and only after ten years of exclusive possession, tax payment, and complete inaction by every other heir, followed by a five-year notice period.

What defeats a cotenant heir's adverse possession claim?

Any other heir contributing to taxes or maintenance, challenging the possession, asserting a claim such as rent, filing notice of their interest in the deed records, or making a written possession agreement.

What notice does the possessing heir have to give?

File an affidavit of heirship and an affidavit of adverse possession in the county deed records, publish notice for four consecutive weeks, and send certified mail to the last known addresses of all other cotenant heirs.

How long do the other heirs have to object?

Five years from the date the affidavits are filed, by controverting affidavit or by suit.

Can a buyer rely on the affidavits?

Yes. A bona fide purchaser or lender for value without notice may rely conclusively on them once they have been on record for the five years with no controverting affidavit or judgment filed.

Amendment History

Added by Acts 2017, 85th Leg., R.S., Ch. 742 (S.B. 1249), Sec. 1, eff. September 1, 2017.

Source & verification. Section text is reproduced verbatim from Texas Legislature Online (statutes.capitol.texas.gov). Enacted by the Texas Legislature. Current through May 14, 2026. Last verified August 29, 2026. · Official source