AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
Informal possession of real property, particularly when there are multiple co-tenant interests, often causes hardships for property owners. Property that has been informally passed from one generation to another, absent a will or other formal documentation, is often referred to as "heirship property." Because proof of fee simple or legal title is required in order to complete a transaction, many informal property owners are unable to secure resources to make improvements or sell the property.
Existing adverse possession statutes provide a mechanism for individuals to obtain title under similar circumstances; however, these statutes cannot be used under the heirship property scenario because of the requirement that the adverse possession be to the exclusion of other co-tenant heirs. This prohibits co-tenant heirs, who have obtained ownership through the rules of intestate succession, from utilizing existing adverse possession statutes to obtain fee simple title.
S.B. 108 is a logical expansion of existing adverse possession statutes because it builds upon existing practices and common real property law by providing a mechanism for individuals to obtain insurable title by recording an "Affidavit of Heirship" and an "Affidavit of Possession" for a reasonable amount of time. Providing Texans, who have provided for the upkeep and paid taxes on real property, with a mechanism to obtain fee simple and legal title in this manner is the only way to allow for them to sell property, obtain home improvement loans, or realize the other benefits of property ownership.
As proposed, S.B. 108 amends current law relating to adverse possession of real property by a cotenant heir against other cotenant heirs.
RULEMAKING AUTHORITY
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter B, Chapter 16, Civil Practice and Remedies Code, by adding Section 16.0265, as follows:
Sec. 16.0265. ADVERSE POSSESSION BY COTENANT HEIR: 15-YEAR COMBINED LIMITATIONS PERIOD. (a) Defines "cotenant heir."
(b) Authorizes one or more cotenant heirs of real property to 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 an affidavit under Subsection (c):
(1) the possessing cotenant heir or heirs hold the property in peaceable and exclusive possession; cultivate, use, or enjoy the property; and 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) Requires the cotenant heir or heirs, if making a claim of adverse possession against a cotenant heir under this section, to:
(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 52A (Form of Affidavit of Facts Concerning Identity of Heirs), Texas Probate 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) Authorizes that the affidavits required by Subsection (c) be filed separately or combined into a single instrument. Requires that the affidavit of adverse possession include a legal description of the property that is the subject of the adverse possession; 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; an attestation of cultivation, use, or enjoyment of the property by each affiant during the 10 years preceding the filing of the affidavit; 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 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) Requires a cotenant heir to 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 described by Subsection (c).
(f) Provides that title vests in the adversely possessing cotenant heir or heirs in the manner provided by Section 16.030 (Title Through Adverse Possession), precluding all claims by other cotenant heirs, if a controverting affidavit or judgment is not filed before the fifth anniversary of the date the affidavits described 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).
(g) Authorizes 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 to conclusively rely on the affidavits described by Subsection (c) if the affidavits have been filed of record for the period prescribed by Subsection (e) and a controverting affidavit or judgment has not been filed during that period.
(h) Provides that 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. Provides that if the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.
(i) Provides that 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.
SECTION 2. Effective date: September 1, 2013.