Waco Trespass to Try Title Attorney (2024)

Dunnam & Dunnam’s Waco real estate attorneys are experienced in handling complicated trespass to try title lawsuits in Central Texas and Waco Texas. If you have an issue that may involve a trespass to try title, you should call a Waco real estate attorney at 254-753-6437.

What is a trespass to try title lawsuit in Texas?

A real-estate owner can bring a trespass to try title case to dispute ownership of property. To establish entitlement to relief, a party has to prove that he or she actually and exclusively possessed the real property, as opposed to constructively possessing the real property. Requirements for a trespass to try title suit are explained in Texas Rule of Civil Procedure 783. The only issues involved in a Texas trespass to try title lawsuit are title and possession. The claimant must “rely on the strength of his or her own title and not any weakness of the defendant’s title.” The claimant should seek an order that voids any adverse claim to vest clear title in the name of the claimant.
To establish a proof of claim for trespass to try title, the claimant must prove one of the following:
1. Title from a common source
2. A regular chain of conveyances from the sovereign
3. Adverse possession
4. Prior possession that has not been abandoned
A trespass to try title action is the method for determining title to lands, tenements or other real property. It is the exclusive remedy by which to resolve competing claims to property. Any suit involving a dispute over the title to land is an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought.

Texas State Law Affecting Trespass to Try Title Lawsuit

Rule 783. Requisites of Petition

The petition shall state:
(a) The real names of the plaintiff and defendant and their residences, if known.
(b) A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county or counties in which the same are situated.
(c) The interest which the plaintiff claims in the premises, whether it be a fee simple or other estate; and, if he claims an undivided interest, the petition shall state the same and the amount thereof.
(d) That the plaintiff was in possession of the premises or entitled to such possession.
(e) That the defendant afterward unlawfully entered upon and dispossessed him of such premises, stating the date, and withholds from him the possession thereof.
(f) If rents and profits or damages are claimed, such facts as show the plaintiff to be entitled thereto and the amount thereof.
(g) It shall conclude with a prayer for the relief sought.

Rule 784. The Possessor Shall Be Defendant

The defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto in case they are unoccupied.

Rule 785. May Join as Defendants, Whom

The plaintiff may join as a defendant with the person in possession, any other person who, as landlord, remainder¬man, reversioner or otherwise, may claim title to the premises, or any part thereof, adversely to the plaintiff.

Rule 786. Warrantor, etc., May Be Made a Party

When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.

Rule 787. Landlord May Become Defendant

When such action shall be commenced against a tenant in possession, the landlord may enter himself as the defendant, or he may be made a party on motion of such tenant; and he shall be entitled to make the same defense as if the suit had been originally commenced against him.

Rule 788. May File Plea of “Not Guilty” Only

The defendant in such action may file only the plea of “not guilty,” which shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff against him, except that if he claims an allowance for improvements, he shall state the facts entitling him to the same.

Rule 789. Proof Under Such Plea

Under such plea of “not guilty” the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.

Rule 790. Answer Taken as Admitting Possession

Such plea or any other answer to the merits shall be an admission by the defendant, for the purpose of that action, that he was in possession of the premises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his answer the extent of his possession or claim, in which case it shall be an admission to such, extent only.

Rule 791. May Demand Abstract of Title

After answer filed, either party may, by notice in writing, duly served on the opposite party or his attorney of record, not less than ten days before the trial of the cause, demand an abstract in writing of the clain1 or title to the premises in question upon which he relies.

Rule 792. Time to File Abstract (1990)

Such abstract of title shall be filed with the papers of the cause that within thirty days after the service of the notice, or within such further time that the court on good cause shown may grant; and in default thereof, the court may, after notice and hearing prior to the beginning of trial, order that no written instruments which are evidence of the claim or title of such opposite party be given on trial.

Rule 793. Abstract Shall State, What

The abstract mentioned in the two preceding rules shall state:
(a) The nature of each document or written instrument intended to be used as evidence and its date; or
(b) If a contract or conveyance, its date, the parties thereto and the date of the proof of acknowledgment, and before what officer the same was made; and
(c) Where recorded, stating the book and page of the record.
(d) If not recorded in the county when the trial is had, copies of such instrument, with the names of the subscribing witnesses, shall be included.
If such unrecorded instrument be lost or destroyed it shall be sufficient to state the nature of such instrument and its loss or destruction.

Rule 794. Amended Abstract

The court may allow either party to file an amended abstract of title, under the same rules, which authorize the amendment of pleadings so far as they are applicable; but in all cases the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of title.

Rule 795. Rules in Other Cases Observed

The trial shall be conducted according to the rules of pleading, practice and evidence in other cases in the district court and comformable to the principles of trial by ejectment, except as otherwise provided by these rules.

Rule 796. Surveyor Appointed, Etc.

The judge of the court may, either in term time or in vacation, at his own discretion, or on motion of either party to the action appoint a surveyor, who shall survey the premises in controversy pursuant to the order of the court, and report his action under oath to such court. If said report be not rejected for good cause shown, the same shall be admitted as evidence on the trial.

Rule 797. Survey Unnecessary When

Where there is no dispute as to the lines or boundaries of the land in controversy, or where the defendant admits that he is in possession of the lands or tenements included in the plaintiff’s claim, or title, an order of survey shall be unnecessary.

Rule 798. Common Source of Title

It shall not be necessary for the plaintiff to deraign title beyond a common source. Proof of a common source may be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source. Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before the trial, and the adverse party served with notice of such filing as in other cases. Such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. The plaintiff may make any legal objection to such certified copies, or the originals thereof, when introduced by the defendant.

Rule 799. Judgment by Default

If the defendant, who has been personally served with citation according to law or these rules fails to appear and answer by himself or attorney within the time prescribed by law or these rules for other actions in the district court, then judgment by default may be entered against him and in favor of the plaintiff for the title to the premises, or the possession thereof, or for both, according to the petition, and for all costs, without any proof of title by the plaintiff.

Rule 800. Proof Ex Parte

If the defendant has been cited only by publication, and fails to appear and answer by himself, or by attorney of his own selection, or if any defendant, having answered, fails to appear by himself or attorney when the case is called for trial on its merits, the plaintiff shall make such proof as will entitle him prima facie to recover, whereupon the proper judgment shall be entered.

Rule 801. When Defendant Claims Part Only

Where the defendant claims part of the premises only, the answer shall be equivalent to a disclaimer of the balance.

Rule 802. When Plaintiff Proves Part

Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.

Rule 803. May Recover a Part

When there are two or more plaintiffs or defendants anyone or more of the plaintiffs may recover against one or more of the defendants the premises, or any part thereof, or any interest therein, or damages, according to the rights of the parties.

Rule 804. The Judgment

Upon the finding of the jury, or of the court where the case is tried by the court, in favor of the plaintiff for the whole or any part or the premises in controversy, the judgment shall be that the plaintiff recover of the defendant the title or possession, or both, as the case may be, of such premises, describing them, and where he recovers the possession, that he have his writ of possession.

Rule 805. Damages

Where it is alleged and proved that one of the parties is in possession of the premises, the court or jury, if they find for the adverse party, shall assess the damages for the use and occupation of the premises. If special injury to the property be alleged and proved, the damages for such injury shall also be assessed, and the proper judgment shall be entered therefor, on which execution may issue.
For context only: Art. 7389 (part): Damages shall not be assessed under this article for use and occupation or for injuries done over two years prior to the commencement of the suit.

Rule 806. Claim for Improvements (1988)

When the defendant or person in possession has claimed an allowance for improvements in accordance with Sections 22.021-22.024, Texas Property Code, the claim for use and occupation and damages mentioned in the preceding rule shall be considered and acted on in connection with such claim by the defendant or person in possession.

Rule 807. Judgment When Claim for Improvements is Made (1988)

When a claim for improvements is successfully made under Sections 22.021-22.024, Texas Property Code, the judgment shall recite the estimated value of the premises without the improvements, and shall also include the conditions, stipulations and directions contained in Sections 22.021-22.024, Property Code so far as applicable to the case before the court.

Rule 808. These Rules Shall Not Govern, When (1988)

Nothing in Sections 22.001-22.045, Texas Property Code, shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.

Rule 809. These Rules Shall Not Govern, When

Nothing in these rules relating to trespass to try title shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.