The Texas Attorney General recently issued opinion KP-0165 addressing whether county clerks in Texas are required to accept and file affidavits of adverse possession. The Opinion concludes that yes, county clerks are required to accept and file affidavits of adverse possession.
The Opinion begins its analysis by noting that county clerks are mandated by law to record any instrument that is required or permitted by law to be recorded. The Texas Property Code states that an affidavit may be recorded if it is properly acknowledged or sworn to and concerns real property. An affidavit of adverse possession concerns real property, therefore a properly executed affidavit must be recorded by the county clerk.
However, the Opinion goes on to state that merely filing an affidavit of adverse possession does not thereby create an interest in the property by adverse possession. The individual or company claiming title by adverse possession must still meet the legal requirements set forth by law.
The Opinion also states that if a county clerk has a reasonable basis to believe in good faith that the affidavit of adverse possession is fraudulent, then the clerk must provide written notice of the filing to the last known address of any person named as owning an interest in the real property.
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