Does new adverse possession law allow Mom to regain title to house?

This column first appeared in the San Antonio Express News on October 9, 2017.


an issue was raised by reader L.T. She and her husband owned a house. He died intestate in the late 1980s. She wants to leave the house to her new second husband, but because of the intestacy law the first husband’s half of the house is owned by their children who are uncooperative. The remedy discussed last week was to file the Will for Probate as a Muniment of Title, but there were several possible roadblocks that could stifle that approach.

There is another possible remedy, which has only been part of state law for about a month. SB 1249 was passed by the Texas Legislature and signed by Governor Abbott, then became effective on September 1, 2017. It is now codified as Section 16.0265 of the Texas Civil Practice and Remedies Code. This new law applies only in limited circumstances.

First, the real estate must have been inherited as cotenants by two or more people under the laws of intestacy.

Second, one of those cotenant heirs must have, for an uninterrupted 10-year period: a) held exclusive possession of the property, b) used and enjoyed the property, and c) paid all of the property taxes within two years of their due date.

Third, other cotenant heir, during that 10-year period, have not: a) paid property taxes or paid to maintain the property, b) contested the occupant’s right to exclusive possession or claimed an economic interest, like asking to share rental receipts, c) filed a notice of interest in the deed records, or d) had an agreement with the occupant allowing the occupation.

If all those factors line up properly, then the occupying cotenant may file an Affidavit of Adverse Possession in the county deed records. Supporting documentation must be attached to the Affidavit. Notice must be published in a local newspaper for four consecutive weeks, and written notice of the claim must be sent by certified mail to the last known address of all other cotenants.

Once those steps are taken, the other cotenants have five years during which they can defeat adverse possession by filing a Controverting Affidavit, or by filing suit against the occupying cotenant.

If the other cotenants take no action during that five years, then when the five-year period ends, the occupying cotenant becomes the sole owner of the property. Title to the property vests in that new sole owner, and all claim of ownership by the former cotenants is precluded.

Is this a way for L.T. to become sole owner of the house, blocking her children’s inherited portions? It seems that the children, already alerted to L.T.’s desire to leave the house to her second husband, would simply respond by filing a Controverting Affidavit after receiving notice by certified mail.

Further, since this is a new law which has not been tested in court, the extent to which the law will apply has not been determined. The law states that the cotenants must “simultaneously acquire identical, undivided ownership interests.” The children might assert that this would apply to an argument between the children (who did acquire identical, undivided interests at moment their father died) but that it would not apply to L.T. because she acquired her interest years earlier when the property was first purchased. Either way, L.T. should talk with her lawyer to decide if the risk of this new approach is worth the possibility of regaining title to the house.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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