Foreshadowing a grim future for family weddings and funerals, Bell and Petsch v. Petch is a property dispute over five tracts of land in Gillespie County, Texas, in which siblings are the combatants. The events are less important than the takeaway: To win an adverse possession claim, the claimant must establish all six of the elements.
Adverse possession, the requirements
- actual and visible possession of the disputed property that is
- adverse and hostile to the claims of the owner of record title;
- open and notorious;
- exclusive; and
- involves continued cultivation, use or enjoyment throughout the statutory period.
The four “Disputed Tracts” are 160, 166, 11 and 17 acres each. A fifth, 118 acres, involved a conveyance by Jeannine (Bell) of her undivided half interest to Darrell (Petsch).
1975: Grandma Thekla dies and devises to Darrell an undivided half interest in the Disputed Tracts, subject to a life estate in Emil.
1976: Jeannine, at the ripe old age of 12, conveys the 118 acres to Darrell by deed.
1976: Grandad Emil conveys the 160, 166 and 11-acre tracts to Darrell by deed.
1979: Emil dies, Darrell acquires the 17-acre tract under Emil’s will.
2020: Jeanine and sister sue for judgment declaring that the deed to the 118 acres is void because she was 12 years old when she signed. Darrell, wanting it all, pleads limitations. The trial court grants summary judgment for Darrell that he acquired title to the Disputed Tracts by adverse possession, limitations bars Jeanine’s claim on the 118 acres, and declaratory judgment is an improper vehicle for adjudicating title (you knew that because you’ve been reading Energy and the Law for years).
The parties became cotenants of the Disputed Tracts when Emil died in 1979. Thus, the court reviewed the evidence in light of the heightened standard applicable to cotenants. A cotenant’s use of common property is presumed not adverse unless the cotenant repudiates his cotenant’s title. Repudiation must be evidenced by actions or declarations that clearly manifest intent to repudiate the cotenancy.
Upon Thekla’s death ownership of the Disputed Tracts was:
Emil 50% fee, Emil 50% life estate, Jeannine 50% remainder.
In 1976 (after Emil’s deed to Darrell), ownership became:
Darrel 50% fee, Darrell 50% life estate, Jeannine 50% remainder.
Upon Emil’s death in 1979 ownership became:
Darrell 50% fee, Jeannine 50% fee.
No adverse possession by Darrell
Darrell asserted that his deed from Emil purporting to convey the entirety of the property in fee was a repudiation of the cotenancy between him and Jeanine. The court disagreed. First, Emil and Jeanine were not cotenants because her interest did not become possessory until Emil’s death. Second, Darrell’s deed was filed of record after Jeannine acquired the remainder interest from Thekla. Thekla could not impart constructive notice on Jeannine after repudiation. Recordation on a date after the other cotenants have already acquired their property interests does not put those cotenants on constructive notice that their cotenant claimed an adverse interest. Darrell failed to conclusively establish notice of repudiation of the cotenancy.
Limitations and Jeannine’s voidable deed
Responding to Jeanine’s challenge to the deed to the 118 acres, Darrell claimed the affirmative defense of three-year statute of limitations under Civil Practice and Remedies Code 16.024. This defense failed because Darrell could not prove every element of his adverse possession claim (See above). The parties continued to jointly use the 118 acres until at least September 2020.
Your musical interlude.