Paxton states county clerks must file affidavit of adverse possession if it meets requirements

By John Sammon | Sep 26, 2017

AUSTIN – Texas Attorney General Ken Paxton wrote in an opinion rendered on Sept. 12 that county clerks are duty bound to accept and file property claims for ownership under “adverse possession,” in other words, claiming property owned by someone else.

That’s if the filed “adverse” claim meets state laws and legal requirements.

“A county clerk may not refuse to accept for filing an instrument of 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,” Paxton noted in the written opinion.

Under Texas law and that of other states, it is possible for a person to acquire title and possession of land they do not own if law requirements are met and the “adverse possessor” claims possession for a certain period of time without opposition.

The question to Paxton for clarification on the matter came about when a county clerk in Grayson County, which is north of Dallas, attended a seminar for Texas county clerks in which disagreement was raised over whether such adverse documents should be allowed to be filed. Some of the clerks contended such documents have been misused in the past by 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 clerks whether to reject the filing of such affidavits,” a request for opinion from the Grayson County Criminal District Attorney stated.

Grayson County Criminal District Attorney Joseph D. Brown made a request to the attorney general’s office in March to review the matter after he had been contacted by county clerks asking for clarification of the issue.  

Paxton explained that an adverse affidavit is not legal title to a property, but merely notice of the existence of adverse possession, and if the document meets legal requirements for recording it, the clerk is required to do so.              

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