Does a Texas county clerk have to record an affidavit of adverse possession?

Plain-English summary

The Grayson County Criminal District Attorney asked the AG whether county clerks may, or must, record affidavits that purport to set out facts establishing ownership of real property by adverse possession and that carry a proper jurat. The question arose because county clerks' offices disagreed. The Grayson County Clerk had heard at a clerks' seminar that such documents should not be filed, since some people had misused them to obtain title to vacant homes, but found there was no uniform consensus among Texas clerks to reject them. The DA's position was that clerks have no authority to accept the documents.

The AG concluded the opposite: a clerk has a duty to record these affidavits if they meet the statutory requirements. A county clerk must record each instrument required or permitted by law to be recorded. Property Code section 12.001(a) permits recording an instrument concerning real or personal property if it has been acknowledged, sworn to with a proper jurat, or proved according to law. An "instrument" is a formal legal document. So an affidavit may be recorded if it has a proper jurat (or is otherwise proved according to law) and concerns real or personal property.

The contested point was whether an affidavit of adverse possession "concerns" the property. The AG noted that Texas registration laws exist so public records disclose all matters affecting land titles, and courts have held that an instrument concerns real property if it discloses a matter affecting title. Courts had treated affidavits of heirship and a joint-venture agreement reciting joint ownership as "concerning" real property. To actually adversely possess property, a person has to meet the statutory elements (actual, visible, adverse, and hostile possession for the required period), so merely filing an affidavit does not create any interest in the land. But filing it does give notice that the document exists. Because an affidavit of adverse possession discloses and gives notice of matters affecting title, it concerns the property, and since section 12.001(a) permits recording such a sworn instrument, the clerk has a duty to accept it.

The AG addressed the squatter worry directly. The clerk may not impose filing requirements beyond those in section 12.001, and a filer's motive or whether the filing will actually accomplish anything does not control whether it is recordable. Filing an affidavit asserting an adverse interest does not vest the filer with legal title. The Legislature built in safeguards: if a clerk has a reasonable, good-faith basis to believe a real-property filing is fraudulent, the clerk must send written notice to the last known address of any person named as owning an interest, and intentionally or knowingly filing a fraudulent instrument is a crime a local prosecutor can pursue. The AG also noted that the 85th Legislature had just passed a statute letting a cotenant heir acquire other heirs' interests by adverse possession by filing an affidavit of heirship and an affidavit of adverse possession, which suggests the Legislature understood such affidavits to be instruments concerning real property.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered, contrary to the DA's position, that county clerks have a duty to accept an affidavit of adverse possession for filing if it meets the recording requirements of Property Code section 12.001(a).

County clerks (as the opinion described them): The opinion treated clerks as required to record a sworn instrument concerning real property and barred from adding filing requirements beyond section 12.001, while also describing their duty to notify owners of a filing they reasonably believe in good faith is fraudulent.

Property owners (as the opinion described them): The opinion explained that the mere filing of an adverse-possession affidavit does not vest the filer with title, and that owners are entitled to notice when a clerk believes in good faith a filing is fraudulent.

People who file adverse-possession affidavits (as the opinion described them): The opinion noted the affidavit alone cannot create property rights, and that knowingly filing a fraudulent instrument is a crime a local prosecutor can pursue.

Common questions

Does a county clerk have to record an affidavit of adverse possession?
Under this opinion, yes, if it has a proper jurat and concerns real property. The AG concluded the clerk has a duty to accept such an instrument under Property Code section 12.001(a) and Local Government Code section 192.001.

Does recording the affidavit give the filer title to the property?
No. The opinion was explicit that the mere filing does not create an interest in the land or vest the filer with legal title; actual adverse possession requires meeting the statutory elements over time.

Can a clerk refuse these affidavits because of squatter fraud concerns?
The opinion said a clerk may not impose requirements beyond section 12.001 or refuse based on the filer's motive. The remedy for fraud is the notice duty and criminal liability, not refusing to record.

What must a clerk do if a filing looks fraudulent?
If the clerk has a reasonable, good-faith basis to believe a real-property filing is fraudulent, the clerk must send written notice to the last known address of any person named as owning an interest in the property.

Is filing a fraudulent affidavit a crime?
Yes. The opinion noted that intentionally or knowingly filing a fraudulent instrument with the clerk is a crime a local prosecutor can pursue.

Background and statutory framework

A county clerk must record each instrument required or permitted by law to be recorded (Tex. Loc. Gov't Code § 192.001). Property Code section 12.001(a) permits recording an instrument concerning real or personal property if it has been acknowledged, sworn to with a proper jurat, or proved according to law (Tex. Prop. Code § 12.001(a)). With no statutory definition, the AG had defined "instrument" as a formal legal document (Tex. Att'y Gen. Op. No. JM-1277 (1990); Ramos v. State, 303 S.W.3d 302, 307 (Tex. Crim. App. 2009)). A jurat certifies when, before whom, and where an affidavit was made (Tex. Att'y Gen. Op. No. JM-883 (1988)), and an unsworn declaration cannot substitute for an instrument concerning real or personal property required to be filed with a clerk (Tex. Civ. Prac. & Rem. Code §§ 132.001(a), 132.001(b), 132.001(c)-(f)).

Texas registration laws aim to have public records disclose all matters affecting land titles, and courts hold an instrument concerns real property if it discloses a matter affecting title (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); Pearson v. Wicker, 746 S.W.2d 322 (Tex. App.—Austin 1988, no writ)). Adverse possession requires meeting statutory elements over a limitations period (Tex. Civ. Prac. & Rem. Code §§ 16.021-.038; Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.—Amarillo 2014, pet. denied)), so merely filing an affidavit creates no interest, though it provides notice of the document's existence (Tex. Prop. Code § 13.002(1)). Because such an affidavit discloses and gives notice of matters affecting title, it concerns the property, and the clerk has a duty to record it.

A clerk may not impose requirements beyond section 12.001, and the filer's motive does not control recordability (Tex. Att'y Gen. Op. No. JM-904 (1998); Turrentine, 389 S.W.2d at 337). If a clerk reasonably believes in good faith that a real-property filing is fraudulent, the clerk must notify the last known address of any person named as owning an interest (Tex. Gov't Code § 51.901(a)(2)), and knowingly filing a fraudulent instrument is a crime (Tex. Gov't Code § 51.904). The AG also noted the 85th Legislature had authorized a cotenant heir to acquire other heirs' interests by adverse possession by filing an affidavit of heirship and an affidavit of adverse possession (Tex. Civ. Prac. & Rem. Code § 16.0265(c)(1)), suggesting the Legislature understood such affidavits to concern real property.

Citations

Statutes:

• Tex. Loc. Gov't Code § 192.001
• Tex. Prop. Code §§ 12.001(a), 13.002(1)
• Tex. Civ. Prac. & Rem. Code §§ 16.021-.038, 16.0265(c)(1), 132.001(a), 132.001(b), 132.001(c)-(f)
• Tex. Gov't Code §§ 51.901(a)(2), 51.904
• Tex. Att'y Gen. Op. Nos. JM-1277 (1990), JM-883 (1988), JM-904 (1998)

Cases:

• Ramos v. State, 303 S.W.3d 302 (Tex. Crim. App. 2009)
• Turrentine v. Lasane, 389 S.W.2d 336 (Tex. Civ. App.—Waco 1965, no writ)
• Leonard v. Benford Lumber Co., 216 S.W. 382 (Tex. 1919)
• Pearson v. Wicker, 746 S.W.2d 322 (Tex. App.—Austin 1988, no writ)
• Wells v. Johnson, 443 S.W.3d 479 (Tex. App.—Amarillo 2014, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0165
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0165.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 12.001(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. LOC. GOV'T CODE § 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. You contend the county clerks have no authority to accept these documents for filing and seek our opinion. Id. at 2-3.

    Property Code section 12.001(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.

TEX. PROP. CODE § 12.001(a). In the absence of a statutory definition, this office in a previous opinion defined "instrument" for purposes of section 12.001(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 jurat [2] or otherwise proved according to law; [3] and (2) concerns real or personal property. See TEX. PROP. CODE § 12.001(a).

    You question whether an affidavit of adverse possession "concerns" the real property at issue. Request Letter at 2-3; see TEX. PROP. CODE § 12.001(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 12.001(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 12.001(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.").

    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. CIV. PRAC. & REM. CODE §§ 16.021-.038; see also Turrentine, 389 S.W.2d at 337; Pearson, 746 S.W.2d at 322. As section 12.001(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 § 12.001(a); TEX. LOC. 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. CIV. 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.

                                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 12.001(a). Fraudulent affidavits are criminal, and county clerks have a duty 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

[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.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[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 1.

[3] Section 132.001(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 § 132.001(a). Subsections (c)-(f) establish the procedures for executing an unsworn declaration. Id. § 132.001(c)-(f). However, that section "does not apply to ... an instrument concerning real or personal property required to be filed with a county clerk." Id. § 132.001(b).

[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)(1)). 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.