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.