### KEN PAXTON ATTORNEY GENERAL OF TEXAS
September 12, 2017

The Honorable Joseph D. Brown OpinionNo. KP-0165 Grayson County Criminal District Attorney 200 South Crockett, Suite 116A Re: Whether affidavits regarding ownership ofreal propertyby adverse possession maybe recorded with the county clerk pursuant to section 12.00l(a) ofthe Property Code (RQ-0155-KP) · Sherman, Texas 75090

Dear Mr. Brown: A county clerk must accept a document for filing when a statute authorizes the recording ofthe instrument. See TEX. Loe. Gov'TCODE § 192.001 ("The county clerk shall record each

... instrumentthatis required orpermittedby lawto berecorded."). Youinformus the county clerks' offices disagree about "whether affidavits that purport to set forth facts that may establish ownership ofreal property by adverse possession and that contain a properjurat must be filed." 1 Specifically, youtell 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 amongTexas county clerk's offices to rejectthe 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: Aninstrumentconcerningreal orpersonalpropertymaybe recorded ifithas been acknowledged, swornto with a properjurat, orproved according to law.

1Letter from Honorable Joseph D. Brown, Grayson Cty. Crim. Dist. Att'y, to the Op. Comm., Office ofthe 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 ofa statutory definition, this office in a previous opinion defined "instrument" for purposes ofsection 12.00l(a) as '"aformal 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 ofany kind

... drawn up and executed in technical form, so as to be oflegal validity" (quotation marks omitted)). Forpurposes ofyour question, anaffidavittherefore maybe recordedifit: (1) is acknowledged or swornto with aproper jurat 2 or otherwiseproved accordingto law;3 and (2) concerns real orpersonal property. See TEX. PROP. CODE§ 12.00l(a). You question whether an affidavit ofadverse 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 ofthe general public policy ofTexas 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) (quotingLeonardv. 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 ifit discloses a matter affecting title to land. See Turrentine, 389 S.W.2d at 337 (holding affidavits ofheirship 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 adverselypossessproperty, an individualmustmeettherequisite statutoryrequirements for the claim-includingactual and visible possession ofthe disputedproperty that is adverse and hostile to the claim ofthe 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 ofan affidavit asserting adverse possession rights does not create an interest in real property. See TEX. CIV. PRAC. & REM. CODE§§ 16.021-.038. The filing ofan affidavit ofadverse possession does, however, provide notice ofthe existence ofthe document. See TEX. PROP. CODE § 13.002(1) ("An instrument that is properly recorded in the proper county is

... notice to all persons ofthe existence ofthe instrument.").

2"Ajurat is a certificate added to an affidavit stating when, before whom, and where it was made, while an acknowledgement is a declaration ofa fact to give it legal validity." Tex. Att'y Gen. Op. No. JM-883 (1988) at I. 3Section 132.00I(a) ofthe Civil Practice and Remedies Code provides that in certain instances "an unsworn declaration may be used in lieu ofa written sworn declaration, verification, certification, oath, or affidavitrequired 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. § 132.00I(b).The Honorable Joseph D. Brown

- Page 3 (KP-0165)

Youtell us the affidavits at issue containproperjurats and purportto 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 ofmatters 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 ofan instrument that concerns real property and has been sworn to with a properjurat 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'TCODE§ 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 ofan 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."). Ifa county clerkhas 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 ofthe 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 orknowingly filing a fraudulent instrumentwiththe clerk is a crimeprosecutable by a local prosecutor. See id. § 51.904.

4Notably, the Eighty-fifth Legislature passed a statute permitting a cotenant heir ofreal property to acquire the interests ofothercotenantheirs byadversepossession ifcertain requirements are met, includingfiling "inthe deed records ofthe county in which the real property is located an affidavit ofheirship

... and an affidavit ofadverse possession." See Tex. S.B. 1249, 85th Leg., R.S. (2017) (to be codified at TEX. CIV. PRAC. & REM. CODE § 16.0265(c)(I)). Thisnew statuteprovides express authorization for cotenantheirsto file such affidavits and suggests the Legislature understood affidavits ofadverse possession to be instruments concerningreal property.The Honorable Joseph D. Brown

- Page 4 (KP-0165)



### SUMMARY Local Government Code section 192.001 requires a county clerkto record an instrument that is required or permitted by law to berecorded. Thus, a county clerkmaynotrefuse to accept for filing an instrument concerning real property, including an affidavit of adversepossession, ifthe affidavitmeetstherecordingrequirements 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.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee ASHLEY FRANKLIN Verytruly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee