By: West S.B. No. 1249
(In the Senate - Filed March 3, 2017; March 13, 2017, read
first time and referred to Committee on State Affairs;
April 3, 2017, reported favorably by the following vote: Yeas 9,
Nays 0; April 3, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to adverse possession of real property by a cotenant heir
against other cotenant heirs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 16, Civil Practice and
Remedies Code, is amended by adding Section 16.0265 to read as
follows:
Sec. 16.0265. ADVERSE POSSESSION BY COTENANT HEIR: 15-YEAR
COMBINED LIMITATIONS PERIOD. (a) In this section, "cotenant heir"
means one of two or more persons who simultaneously acquire
identical, undivided ownership interests in, and rights to
possession of, the same real property by operation of the
applicable intestate succession laws of this state or a successor
in interest of one of those persons.
(b) One or more cotenant heirs of real property may 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 the affidavits
required by Subsection (c):
(1) the possessing cotenant heir or heirs:
(A) hold the property in peaceable and exclusive
possession;
(B) cultivate, use, or enjoy the property; and
(C) 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) To make a claim of adverse possession against a cotenant
heir under this section, the cotenant heir or heirs claiming
adverse possession must:
(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 203.002, Estates 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) The affidavits required by Subsection (c) may be filed
separately or combined into a single instrument. The affidavit of
adverse possession must include:
(1) a legal description of the property that is the
subject of the adverse possession;
(2) 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;
(3) an attestation of cultivation, use, or enjoyment
of the property by each affiant during the 10 years preceding the
filing of the affidavit;
(4) 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
(5) 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) A cotenant heir must 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 required by
Subsection (c).
(f) If a controverting affidavit or judgment is not filed
before the fifth anniversary of the date the affidavits required 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), title vests in the adversely
possessing cotenant heir or heirs in the manner provided by Section
16.030, precluding all claims by other cotenant heirs.
(g) 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 may conclusively rely on the affidavits
required by Subsection (c) if:
(1) the affidavits have been filed of record for the
period prescribed by Subsection (e); and
(2) a controverting affidavit or judgment has not been
filed during that period.
(h) 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. If the number of enclosed acres exceeds 160 acres,
peaceable and adverse possession extends to the real property
actually enclosed.
(i) 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. This Act takes effect September 1, 2017.
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