Texas 2013 - 83rd Regular

Texas Senate Bill SB108 Compare Versions

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1	1	By: West S.B. No. 108
2	2	(Lewis)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to adverse possession of real property by a cotenant heir
8	8	against other cotenant heirs.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter B, Chapter 16, Civil Practice and
11	11	Remedies Code, is amended by adding Section 16.0265 to read as
12	12	follows:
13	13	Sec. 16.0265. ADVERSE POSSESSION BY COTENANT HEIR: 15-YEAR
14	14	COMBINED LIMITATIONS PERIOD. (a) In this section, "cotenant heir"
15	15	means one of two or more persons who simultaneously acquire
16	16	identical, undivided ownership interests in, and rights to
17	17	possession of, the same real property by operation of the
18	18	applicable intestate succession laws of this state or a successor
19	19	in interest of one of those persons.
20	20	(b) One or more cotenant heirs of real property may acquire
21	21	the interests of other cotenant heirs in the property by adverse
22	22	possession under this section if, for a continuous, uninterrupted
23	23	10-year period immediately preceding the filing of an affidavit
24	24	under Subsection (c):
25	25	(1) the possessing cotenant heir or heirs:
26	26	(A) hold the property in peaceable and exclusive
27	27	possession;
28	28	(B) cultivate, use, or enjoy the property; and
29	29	(C) pay all property taxes on the property not
30	30	later than two years after the date the taxes become due; and
31	31	(2) no other cotenant heir has:
32	32	(A) contributed to the property's taxes or
33	33	maintenance;
34	34	(B) challenged a possessing cotenant heir's
35	35	exclusive possession of the property;
36	36	(C) asserted any other claim against a possessing
37	37	cotenant heir in connection with the property, such as the right to
38	38	rental payments from a possessing cotenant heir;
39	39	(D) acted to preserve the cotenant heir's
40	40	interest in the property by filing notice of the cotenant heir's
41	41	claimed interest in the deed records of the county in which the
42	42	property is located; or
43	43	(E) entered into a written agreement with the
44	44	possessing cotenant heir under which the possessing cotenant heir
45	45	is allowed to possess the property but the other cotenant heir does
46	46	not forfeit that heir's ownership interest.
47	47	(c) To make a claim of adverse possession against a cotenant
48	48	heir under this section, the cotenant heir or heirs claiming
49	49	adverse possession must:
50	50	(1) file in the deed records of the county in which the
51	51	real property is located an affidavit of heirship in the form
52	52	prescribed by Section 52A, Texas Probate Code, and an affidavit of
53	53	adverse possession that complies with the requirements of
54	54	Subsection (d);
55	55	(2) publish notice of the claim in a newspaper of
56	56	general circulation in the county in which the property is located
57	57	for the four consecutive weeks immediately following the date the
58	58	affidavits required by Subdivision (1) are filed; and
59	59	(3) provide written notice of the claim to the last
60	60	known addresses of all other cotenant heirs by certified mail,
61	61	return receipt requested.
62	62	(d) The affidavits required by Subsection (c) may be filed
63	63	separately or combined into a single instrument. The affidavit of
64	64	adverse possession must include:
65	65	(1) a legal description of the property that is the
66	66	subject of the adverse possession;
67	67	(2) an attestation that each affiant is a cotenant
68	68	heir of the property who has been in peaceable and exclusive
69	69	possession of the property for a continuous, uninterrupted period
70	70	during the 10 years preceding the filing of the affidavit;
71	71	(3) an attestation of cultivation, use, or enjoyment
72	72	of the property by each affiant during the 10 years preceding the
73	73	filing of the affidavit;
74	74	(4) evidence of payment by the affiant or affiants of
75	75	all property taxes on the property as provided by Subsection (b)
76	76	during the 10 years preceding the filing of the affidavit; and
77	77	(5) an attestation that there has been no action
78	78	described by Subsection (b)(2) by another cotenant heir during the
79	79	10 years preceding the filing of the affidavit.
80	80	(e) A cotenant heir must file a controverting affidavit or
81	81	bring suit to recover the cotenant heir's interest in real property
82	82	adversely possessed by another cotenant heir under this section not
83	83	later than the fifth anniversary of the date a right of adverse
84	84	possession is asserted by the filing of the affidavits described by
85	85	Subsection (c).
86	86	(f) If a controverting affidavit or judgment is not filed
87	87	before the fifth anniversary of the date the affidavits described
88	88	by Subsection (c) are filed and no notice described by Subsection
89	89	(b)(2)(D) was filed in the 10-year period preceding the filing of
90	90	the affidavits under Subsection (c), title vests in the adversely
91	91	possessing cotenant heir or heirs in the manner provided by Section
92	92	16.030, precluding all claims by other cotenant heirs.
93	93	(g) A bona fide lender for value without notice accepting a
94	94	voluntary lien against the real property to secure the adversely
95	95	possessing cotenant heir's indebtedness or a bona fide purchaser
96	96	for value without notice may conclusively rely on the affidavits
97	97	described by Subsection (c) if:
98	98	(1) the affidavits have been filed of record for the
99	99	period prescribed by Subsection (e); and
100	100	(2) a controverting affidavit or judgment has not been
101	101	filed during that period.
102	102	(h) Without a title instrument, peaceable and adverse
103	103	possession is limited in this section to 160 acres, including
104	104	improvements, unless the number of acres actually enclosed exceeds
105	105	160 acres. If the number of enclosed acres exceeds 160 acres,
106	106	peaceable and adverse possession extends to the real property
107	107	actually enclosed.
108	108	(i) Peaceable possession of real property held under a duly
109	109	registered deed or other memorandum of title that fixes the
110	110	boundaries of the possessor's claim extends to the boundaries
111	111	specified in the instrument.
112	112	SECTION 2. This Act takes effect September 1, 2013.