Untitled Texas Attorney General Opinion ( 2017 )


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  •                                               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
    

Document Info

Docket Number: KP-0165

Judges: Ken Paxton

Filed Date: 7/2/2017

Precedential Status: Precedential

Modified Date: 9/12/2017