Untitled Texas Attorney General Opinion

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

September 12, 2017

The Honorable Joseph D. Brown Opinion No. KP-0165

Grayson County Criminal District Attorney

200 South Crockett, Suite 116A Re: Whether affidavits regarding ownership

· Sherman, Texas 75090 of real property by adverse possession may be

recorded with the county clerk pursuant to

section 12.00l(a) of the Property Code

(RQ-0155-KP)

Dear Mr. Brown:

A county clerk must accept a document for filing when a statute authorizes the recording

of the instrument. See TEX. Loe. Gov'TCODE § 192.001 ("The county clerk shall record each ...

instrument that is required or permitted by law to be recorded."). You inform us the county clerks'

offices disagree about "whether affidavits that purport to set forth facts that may establish

ownership of real property by adverse possession and that contain a proper jurat must be filed." 1

Specifically, you tell us:

The Grayson County Clerk recently learned at a seminar for Texas

county clerks that such documents should not be filed because they

have been misused in the past by some people to obtain title to

vacant homes. However, further investigation into this issue by the

Grayson County Clerk indicated that there was not a uniform

consensus among Texas county clerk's offices to reject the filing of

such affidavits.

Request Letter at 1. y OU contend the county clerks have no authority to accept these documents

for filing and seek our opinion. Id. at 2-3.

Property Co.de section 12.00l(a) provides:

An instrument concerning real or personal property may be recorded

if it has been acknowledged, sworn to with a proper jurat, or proved

according to law.

1

Letter from Honorable Joseph D. Brown, Grayson Cty. Crim. Dist. Att'y, to the Op. Comm., Office of the

Tex. Att'y Gen. at 2 (Mar. 16, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs

("Request Letter").

The Honorable Joseph D. Brown - Page 2 (KP-0165)

TEX. PROP. CODE § 12.00l(a). In the absence of a statutory definition, this office in a previous

opinion defined "instrument" for purposes of section 12.00l(a) as '"a formal or legal document in

writing."' See Tex. Att'y Gen. Op. No. JM-1277 (1990) at 4 (quoting BLACK'S LAW DICTIONARY

719 (5th ed. 1979); see also Ramos v. State, 303 S.W.3d 302, 307 (Tex. Crim. App. 2009)

(construing common meaning of "instrument" as "a formal legal document whereby a right is

created or confirmed, or a fact recorded; a formal writing of any kind ... drawn up and executed

in technical form, so as to be of legal validity" (quotation marks omitted)). For purposes of your

question, an affidavit therefore may be recorded if it: (1) is acknowledged or sworn to with a proper

jurat2 or otherwise proved according to law; 3 and (2) concerns real or personal property. See TEX.

PROP. CODE§ 12.00l(a).

You question whether an affidavit of adverse possession "concerns" the real property at

issue. Request Letter at 2-3; see TEX. PROP. CODE § 12.00l(a) (permitting the recording of

instruments "concerning" real property). While the statute does not define the term "concerning,"

courts have construed the term in light of the general public policy of Texas registration laws to

require "that our public records disclose all matters affecting our land titles." See Turrentine v.

Lasane, 389 S.W.2d 336, 337 (Tex. Civ. App-Waco 1965, no writ) (quoting Leonard v. Benford

Lumber Co., 216 S.W. 382, 383 (Tex. 1919)); see also Pearson v. Wicker, 746 S.W.2d 322, 322

(Tex. App-Austin 1988, no writ). Thus, courts have held that an instrument concerns real

property if it discloses a matter affecting title to land. See Turrentine, 389 S.W.2d at 337 (holding

affidavits of heirship affected land titles and therefore were instruments "concerning" land under

statutory predecessor to Property Code section 12.00l(a)); Pearson, 746 S.W.2d at 322 (holding

joint venture agreement stating that parties owned real estate lots jointly was an instrument

"concerning" real property under Property Code section 12.00l(a)).

To adversely possess property, an individual must meet the requisite statutory requirements

for the claim-including actual and visible possession of the disputed property that is adverse and

hostile to the claim of the owner-for a specified time period. See generally TEX. CIV. PRAC. &

REM. CODE §§ 16.021-.038 (listing statutory requirements for establishing adverse possession

under 3, 5, 10, and 25-year limitations periods); see also Wells v. Johnson, 443 S.W.3d 479, 489

(Tex. App.-Amarillo 2014, pet. denied) (listing essential elements common to all adverse

possession claims). Thus, the mere filing of an affidavit asserting adverse possession rights does

not create an interest in real property. See TEX. CIV. PRAC. & REM. CODE§§ 16.021-.038. The

filing of an affidavit of adverse possession does, however, provide notice of the existence of the

document. See TEX. PROP. CODE § 13.002(1) ("An instrument that is properly recorded in the

proper county is ... notice to all persons of the existence of the instrument.").

2

"A jurat is a certificate added to an affidavit stating when, before whom, and where it was made, while an

acknowledgement is a declaration of a fact to give it legal validity." Tex. Att'y Gen. Op. No. JM-883 (1988) at I.

3

Section 132.00 I (a) of the Civil Practice and Remedies Code provides that in certain instances "an unsworn

declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by

statute." TEX. CIV. PRAC. & REM. CODE§ 132.00l(a). Subsections (c)-(t) establish the procedures for executing an

unsworn declaration. Id. § 132.00l(c)-(t). However, that section "does not apply to ... an instrument concerning

real or personal property required to be filed with a county clerk." Id. § 132.00 I (b ).

The Honorable Joseph D. Brown - Page 3 (KP-0165)

You tell us the affidavits at issue contain proper jurats and purport to set forth facts that, if

true, may establish an ownership interest in real property through adverse possession. Request

Letter at 2. While these instruments alone cannot create property rights, they do concern the

property at issue by disclosing and providing notice of matters affecting title. See TEX. PROP.

CODE § 13.002(1), TEX. C!V. PRAC. & REM. CODE §§ 16.021-.038; see also Turrentine, 389

S.W.2d at 337; Pearson, 746 S.W.2d at 322. As section 12.00l(a) permits the recording of an

instrument that concerns real property and has been sworn to with a proper jurat or otherwise

proved according to law, a county clerk has a duty to accept such documents for filing. See TEX.

PROP. CODE§ 12.00l(a); TEX. Loe. Gov'T CODE§ 192.001. 4

You inform us that some county clerks refuse to accept these affidavits due to "several

highly-publicized incidents involving squatters obtaining title to vacant homes." Request Letter

at 2. The mere filing of an affidavit asserting an adverse interest in another's property does not

vest the filer with legal title. See TEX. C1v. PRAC. & REM. CODE §§ 16.021-.038. Moreover, a

county clerk may not impose filing requirements beyond those set forth in section 12.001. See

Tex. Att'y Gen. Op. No. JM-904 (1998) at 4 ("If the instrument meets the requirements for

recording set forth in section 12.001 [,] the clerk is required to record the document."); see also

Turrentine, 389 S.W.2d at 337 ("Neither [the filer's] motive in seeking to have the instruments

recorded, whether her purpose may in fact be effectuated, nor whether it is good practice for title

examiners to rely on them, are elements which determine whether they are subject to

recordation."). If a county clerk has a reasonable basis to believe in good faith that a document or

instrument asserting a claim or interest in real property offered for filing and recording is

fraudulent, the clerk shall provide written notice of the filing to the last known address of any

person named as owning an interest in the real property. See TEX. Gov'T CODE§ 51.901(a)(2).

Intentionally or knowingly filing a fraudulent instrument with the clerk is a crime prosecutable by

a local prosecutor. See id. § 51.904.

4

Notably, the Eighty-fifth Legislature passed a statute permitting a cotenant heir of real property to acquire

the interests of other cotenant heirs by adverse possession if certain requirements are met, including filing "in the deed

records of the county in which the real property is located an affidavit of heirship ... and an affidavit of adverse

possession." See Tex. S.B. 1249, 85th Leg., R.S. (2017) (to be codified at TEX. CIV. PRAC. & REM. CODE

§ 16.0265(c)(I)). This new statute provides express authorization for cotenant heirs to file such affidavits and suggests

the Legislature understood affidavits of adverse possession to be instruments concerning real property.

The Honorable Joseph D. Brown - Page 4 (KP-0165)

SUMMARY

Local Government Code section 192.001 requires a county

clerk to record an instrument that is required or permitted by law to

be recorded. Thus, a county clerk may not refuse to accept for filing

an instrument concerning real property, including an affidavit of

adverse possession, if the affidavit meets the recording requirements

of Property Code section i2.001(a). Fraudulent affidavits are

criminal, and county clerks have a c,luty to notify property owners .

when a fraudulent affidavit is filed.

Very truly yours,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

BRANTLEY STARR

Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER

Chair, Opinion Committee

ASHLEY FRANKLIN

Assistant Attorney General, Opinion Committee