By:  Uher                                             H.B. No. 1537
       73R4614 LJD-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to marketable record title.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Title 4, Property Code, is amended by adding
    1-5  Chapter 28 to read as follows:
    1-6            CHAPTER 28.  TEXAS MARKETABLE RECORD TITLE ACT
    1-7        Sec. 28.001.  DEFINITIONS.  In this chapter:
    1-8              (1)  "Failed depository institution" means a bank,
    1-9  savings and loan association, or other depository institution
   1-10  placed in receivership or conservatorship by a state or federal
   1-11  agency or instrumentality, including the Banking Department of
   1-12  Texas, the Savings and Loan Department of Texas, the Office of the
   1-13  Comptroller of the Currency, the Resolution Trust Corporation, the
   1-14  Federal Deposit Insurance Corporation, the Federal Savings and Loan
   1-15  Insurance Corporation, and their successors.
   1-16              (2)  "Marketable record title" means a title of record
   1-17  that extinguishes interests and claims existing before the
   1-18  effective date of the origin of marketable record title, as
   1-19  provided by Section 28.004.
   1-20              (3)  "Mortgage" includes a deed of trust.
   1-21              (4)  "Origin of marketable record title" means a title
   1-22  transaction purporting to create the interest claimed by a person
   1-23  that was the most recent to be recorded as of a date 50 years
   1-24  before the time when marketability is being determined.  The
    2-1  "effective date of the origin of marketable record title" is the
    2-2  date on which the title transaction was recorded.
    2-3              (5)  "Possession" means use or occupancy of land
    2-4  sufficient to cause a person to inquire as to the reason for the
    2-5  use or occupancy and includes occupancy of a residence or business
    2-6  on the land or farming, grazing, or harvesting timber on the land.
    2-7              (6)  "Recording," when applied to records, includes
    2-8  filing.
    2-9              (7)  "Records," "record," or "recorded" means the real
   2-10  property records of the county clerk of the county in which the
   2-11  land is located.
   2-12              (8)  "Title" includes fee title such as fee simple
   2-13  absolute, fee simple determinable, fee simple subject to condition
   2-14  subsequent, or other fee, a life estate, and an estate for years.
   2-15              (9)  "Title transaction" means any transaction
   2-16  purporting to affect title to any interest in land, without regard
   2-17  to whether the transaction is valid or is in the chain of title
   2-18  from the sovereign, and includes:
   2-19                    (A)  a mortgage;
   2-20                    (B)  a transfer of an easement;
   2-21                    (C)  a transfer of a mineral or royalty interest;
   2-22                    (D)  title by will;
   2-23                    (E)  title by descent evidenced by a
   2-24  determination of heirship or an instrument described by Section
   2-25  28.007;
   2-26                    (F)  title by decree of any court;
   2-27                    (G)  a patent or grant from the state or
    3-1  sovereign;
    3-2                    (H)  a proper notice that complies with Section
    3-3  28.005; and
    3-4                    (I)  title by warranty, quitclaim, trustee's,
    3-5  receiver's, guardian's, executor's, administrator's, sheriff's,
    3-6  tax, or other deed.
    3-7        Sec. 28.002.  MARKETABLE RECORD TITLE.  (a)  A person who
    3-8  possesses the legal capacity to own land in this state and who has
    3-9  an unbroken chain of title of record from the origin of marketable
   3-10  record title to an interest in land for 50 years or more is
   3-11  considered to have a marketable record title to the interest.  A
   3-12  judicial determination of marketable record title is not necessary.
   3-13  A title that meets the requirements of this section is presumed to
   3-14  be marketable title in any proceeding, in the absence of proof that
   3-15  an exception under Section 28.003 exists.  A marketable record
   3-16  title is subject only to the exceptions prescribed by Section
   3-17  28.003.  A person is considered to have an unbroken chain of title
   3-18  of record when the records disclose a title transaction that is the
   3-19  origin of marketable record title that has been of record at least
   3-20  50 years and purports to create an interest in:
   3-21              (1)  the person claiming the interest; or
   3-22              (2)  some other person who transferred title to the
   3-23  claimant directly or by mesne title transactions of record.
   3-24        (b)  A title to a particular interest is not a marketable
   3-25  record title of the claimant if a transaction appears of record
   3-26  that purports to divest the claimant of the interest.
   3-27        (c)  Marketable record title is determined by the title to
    4-1  the particular land.  Title to particular land is not unmarketable
    4-2  because of:
    4-3              (1)  the status or quality of the title to:
    4-4                    (A)  other land;
    4-5                    (B)  easements appurtenant to the particular
    4-6  land; or
    4-7                    (C)  access to the particular land; or
    4-8              (2)  reliance on uncontradicted presumptions of
    4-9  authority to convey as recognized by other applicable law.
   4-10        Sec. 28.003.  INTERESTS TO WHICH MARKETABLE RECORD TITLE IS
   4-11  SUBJECT.  A marketable record title is subject to and this chapter
   4-12  may not be applied to bar:
   4-13              (1)  each interest or defect that is specifically
   4-14  described, by reference to the recorded title transaction that
   4-15  creates the interest or defect, in the muniment forming the chain
   4-16  of record title from the origin of marketable record title;
   4-17              (2)  each interest preserved in accordance with Section
   4-18  28.005 by:
   4-19                    (A)  the filing of proper notice;
   4-20                    (B)  possession; or
   4-21                    (C)  payment of real property taxes;
   4-22              (3)  the rights of a person arising from a period of
   4-23  adverse possession or use that was in whole or in part after the
   4-24  effective date of the origin of marketable record title;
   4-25              (4)  an interest arising out of a title transaction
   4-26  that is recorded after the effective date of the origin of
   4-27  marketable record title that is equal to and a substitute for a
    5-1  notice under Section 28.005; however, recording does not revive or
    5-2  give validity to any interest that was extinguished by the
    5-3  operation of Section 28.004 before the time the interest was
    5-4  recorded;
    5-5              (5)  a lessor's reversion when the lease expires;
    5-6              (6)  an easement or right of way, whether by
    5-7  prescription, grant, reservation, implication, or otherwise, and
    5-8  whether created before or after the effective date of the origin of
    5-9  marketable record title;
   5-10              (7)  a mortgage, statutory or constitutional lien, or
   5-11  restrictive covenant not barred by other applicable law;
   5-12              (8)  any of the following rights or interests severed
   5-13  from the surface or from remaining rights in land:
   5-14                    (A)  geothermal;
   5-15                    (B)  coal;
   5-16                    (C)  lignite;
   5-17                    (D)  uranium;
   5-18                    (E)  iron;
   5-19                    (F)  rock asphalt;
   5-20                    (G)  oil;
   5-21                    (H)  gas; and
   5-22                    (I)  mineral;
   5-23              (9)  a right to explore for, develop, mine, or produce
   5-24  a right or interest described by Subdivision (8);
   5-25              (10)  proceeds, income, or profits from production of a
   5-26  right or interest described by Subdivision (8) whether a working
   5-27  interest or a royalty interest;
    6-1              (11)  consideration for a severance of a right or
    6-2  interest described by Subdivision (8) from the surface or remaining
    6-3  interests in the land;
    6-4              (12)  any use of the surface or subsurface in
    6-5  connection with a right or interest described by Subdivision (8)
    6-6  that is recognized by applicable law or agreement;
    6-7              (13)  a surface lease of the land for or incidental to
    6-8  the exploration, development, production, processing,
    6-9  transportation, refining, or marketing of a right or interest
   6-10  described by Subdivision (8);
   6-11              (14)  water rights and interests;
   6-12              (15)  a right, title, or interest of this state or an
   6-13  agency, instrumentality, commission, board, or political
   6-14  subdivision of this state; and
   6-15              (16)  a right, title, or interest of the United States
   6-16  or any instrumentality of the United States.
   6-17        Sec. 28.004.  INTERESTS EXTINGUISHED BY MARKETABLE RECORD
   6-18  TITLE.  Subject to the interests prescribed by Section 28.003 to
   6-19  the extent those interests are enforceable under other applicable
   6-20  law, a marketable record title is free and clear of each interest
   6-21  that depends on an act, transaction, event, or omission that
   6-22  occurred before the effective date of the origin of marketable
   6-23  record title.  An interest from which the marketable record title
   6-24  is free and clear is void, without regard to whether the interest
   6-25  is legal or equitable, present or future, asserted by a person sui
   6-26  juris or under a disability, or asserted by a person within or
   6-27  outside this state.
    7-1        Sec. 28.005.  EFFECT OF FILING OR POSSESSION.  (a)  A person
    7-2  claiming an interest in land may preserve and keep effective the
    7-3  interest by filing for record a verified notice setting forth the
    7-4  nature of the claim.  The notice must be filed not later than the
    7-5  50th anniversary of the effective date of the origin of marketable
    7-6  record title.  A disability or lack of knowledge of any kind on the
    7-7  part of any person does not suspend the running of the 50-year
    7-8  period.  The notice may be filed for record by the claimant or by a
    7-9  person acting on behalf of a claimant without regard to whether the
   7-10  claimant is:
   7-11              (1)  under a disability;
   7-12              (2)  unable to assert a claim on the claimant's own
   7-13  behalf; or
   7-14              (3)  one of a class whose identity cannot be
   7-15  established or is uncertain at the time for filing the notice of
   7-16  claim for record.
   7-17        (b)  A person acting on behalf of a claimant under Subsection
   7-18  (a) is not required to be a legally appointed or authorized
   7-19  representative or agent.
   7-20        (c)  A period of possession is equivalent to the filing of a
   7-21  notice immediately preceding the termination of the 50-year period
   7-22  described by Subsection (a) if:
   7-23              (1)  the owner of a possessory interest in land has
   7-24  been in possession of the land from the day immediately preceding
   7-25  the termination of the 50-year period described by Subsection (a);
   7-26              (2)  no title transaction with respect to the interest
   7-27  appears of record in the owner's chain of title;
    8-1              (3)  notice has not been filed by the owner or on the
    8-2  owner's behalf as provided by Subsection (a); and
    8-3              (4)  the possession continues to the time when
    8-4  marketability is being determined or until a notice is filed in
    8-5  accordance with Subsection (a).
    8-6        (d)  Payment of all real property taxes by an owner or
    8-7  deferral of payment of taxes under Section 33.06, Tax Code, equals
    8-8  possession by the person under Subsection (c) for the year the
    8-9  taxes are imposed.
   8-10        (e)  For purposes of this section, payment of taxes or
   8-11  possession by a predecessor or tenant of an owner equals payment of
   8-12  taxes or possession by the owner.
   8-13        (f)  For purposes of this section, an instrument in the
   8-14  records may state the specific years that a person has paid taxes
   8-15  on or been in possession of the land and is prima facie evidence of
   8-16  the correctness of the stated facts.
   8-17        Sec. 28.006.  CONTENTS AND FORM OF NOTICE; RECORDING AND
   8-18  INDEXING.  (a)  To be effective and to be eligible for recording, a
   8-19  notice under Section 28.005 must contain an accurate and full
   8-20  description of the land affected by the notice.  The description
   8-21  must be set forth in particular terms, such as by reference to lots
   8-22  and blocks in a recorded plat, to a metes and bounds description,
   8-23  or to specific records of the General Land Office, and not by
   8-24  general inclusions.  If the claim is founded on a recorded
   8-25  instrument, the description in the notice may be the same as that
   8-26  contained in the recorded instrument.  A notice may incorporate a
   8-27  description contained in a recorded instrument by reference to the
    9-1  volume and page numbers or file number of the instrument.  A notice
    9-2  may contain, refer to, or incorporate the description of more than
    9-3  one tract or parcel of land.  The notice must be filed for record
    9-4  in the office of the clerk of each county in which any part of the
    9-5  land is situated.  The clerk of each county shall accept each
    9-6  notice presented to the clerk that describes land located in the
    9-7  county in which the clerk serves and shall enter and record a full
    9-8  copy in the same way that a deed or other instrument is recorded.
    9-9  The clerk is not required to verify compliance with this section by
   9-10  a person filing a notice.  Each clerk may charge the same fee for
   9-11  recording a notice as is charged for recording a deed.
   9-12        (b)  The notice must be in substantially the following form:
   9-13  State of Texas
   9-14  County of ___________________
   9-15             Notice of Preservation of Interest under the
   9-16                   Texas Marketable Record Title Act
   9-17  (On behalf of ______________ (if applicable))
   9-18  _____________________ (the Claimant) files this notice pursuant to
   9-19  the Texas Marketable Record Title Act to preserve the Claimant's
   9-20  interest in the following described property (the Property):
   9-21                            (describe land)
   9-22        Claimant claims the following interest in the Property:
   9-23                     (describe interest asserted)
   9-24  Signed:  ____________________________________________________
   9-25  Date:  ______________________________________________________
   9-26  Name of Claimant or person
   9-27  signing on behalf of Claimant
   10-1  (print name):  ______________________________________________
   10-2  (where another person signs
   10-3  on behalf of Claimant)
   10-4  On behalf of (print
   10-5  name of Claimant):  __________________________________________
   10-6        Sworn to and subscribed before me the  undersigned  authority
   10-7  on this the ______________ day of _____________________ by
   10-8  _____________.
   10-9        (c)  A county clerk shall make copies of the form of notice
  10-10  available to the public and may charge a reasonable fee for the
  10-11  form.
  10-12        (d)  A notice under Section 28.005 substantially complies
  10-13  with the requirements of Subsection (b) if the notice:
  10-14              (1)  describes the land;
  10-15              (2)  states the interest that the claimant asserts;
  10-16              (3)  contains the name of the claimant; and
  10-17              (4)  contains the signature and jurat of the claimant
  10-18  or a person signing for the claimant.
  10-19        Sec. 28.007.  PROCEEDING AFTER DEATH.  (a)  Not earlier than
  10-20  six months after the date of a decedent's death, an affidavit of
  10-21  heirship in the record constitutes prima facie evidence of the
  10-22  heirship from the decedent for the purpose of title to land.  The
  10-23  existence of the affidavit of heirship as the sole evidence of
  10-24  heirship does not cause unmarketability of the title if:
  10-25              (1)  a judicial determination of heirship is not
  10-26  pending or has not occurred; and
  10-27              (2)  no affidavit, judgment of heirship, or title
   11-1  transaction in the chain of title in the records states that an
   11-2  heir omitted from the affidavit of heirship is an heir of the
   11-3  decedent.
   11-4        (b)  An affidavit or instrument that complies with Section
   11-5  52, Texas Probate Code, does not constitute a matter that causes
   11-6  unmarketability of the title because of the lack of judicial
   11-7  determination of heirship.
   11-8        (c)  A bona fide purchaser for value from the heirs stated in
   11-9  an affidavit of heirship acquires title subject to the claims of
  11-10  the decedent's creditors, legatees or devisees of the decedent
  11-11  under a will admitted to probate, and omitted heirs as otherwise
  11-12  provided by applicable law.  An omitted heir, personal
  11-13  representative of the decedent's estate, or a legatee or devisee
  11-14  under a will admitted to probate also may recover from an heir who
  11-15  received consideration in a transfer to a bona fide purchaser for
  11-16  value, based on an affidavit that complies with this section.
  11-17        Sec. 28.008.  FAILED DEPOSITORY INSTITUTION.  A party at any
  11-18  time may record an affidavit or memorandum of any sale, transfer,
  11-19  purchase, or acquisition agreement between the receiver or
  11-20  conservator of a failed depository institution and another
  11-21  depository institution.  If the sale, transfer, purchase, or
  11-22  acquisition agreement transfers an interest in land or in a
  11-23  mortgage vested according to the records of the failed depository
  11-24  institution, a recorded affidavit or memorandum under this section
  11-25  is constructive notice of the transfer or sale.  The failure of the
  11-26  affidavit or memorandum to be executed by the record owner or to
  11-27  contain language of conveyance does not create unmarketability of
   12-1  the title.
   12-2        Sec. 28.009.  LIMITATIONS OF ACTIONS AND RECORDING ACTS.
   12-3  This chapter does not extend any statute of limitations period,
   12-4  including any statutes relating to adverse possession or use.  This
   12-5  chapter does not  affect any recording statutes except as
   12-6  specifically provided.
   12-7        Sec. 28.010.  CHAPTER TO BE LIBERALLY CONSTRUED.  (a)  This
   12-8  chapter shall be liberally construed to effect the legislative
   12-9  purpose of simplifying and facilitating land title transactions by
  12-10  allowing persons to rely on a record chain of title as described by
  12-11  Section 28.002, subject only to limitations as provided by Section
  12-12  28.003.
  12-13        (b)  For purposes of Section 28.003(8), the terms "oil,"
  12-14  "gas," and "mineral" shall be liberally construed.
  12-15        Sec. 28.011.  TWO-YEAR EXTENSION OF 50-YEAR PERIOD.  If the
  12-16  50-year period for notice, possession, or payment of taxes provided
  12-17  by Section 28.005 has expired before September 1, 1993, or expires
  12-18  before September 1, 1995, the period is extended to September 1,
  12-19  1995.
  12-20        SECTION 2.  This Act takes effect September 1, 1993.
  12-21        SECTION 3.  The importance of this legislation and the
  12-22  crowded condition of the calendars in both houses create an
  12-23  emergency and an imperative public necessity that the
  12-24  constitutional rule requiring bills to be read on three several
  12-25  days in each house be suspended, and this rule is hereby suspended.