I learned of the problem last July. That was when the Dallas Morning News reported that an individual moved into a vacant Flower Mound property worth $340,000 and attempted to claim ownership. Kenneth Robinson paid nothing for the property. Robinson did not agree to pay off the existing mortgage. Robinson did not agree to pay rent, repair the property, “stage” the property for buyers, care for the property or make any other agreement. Robinson merely noticed the property was vacant, and moved in.
article gives some context for Robinson’s legal position.
Robinson evidently noticed that the Waterford Park Estates property had been
vacant for about a year. It seems that the owner may have lost interest in it, and
then the owner’s lender filed bankruptcy in 2009. Perhaps the owner had no
equity in it and elected to allow foreclosure – toss the lender the keys so to speak – but those facts are not
given in the article. Maybe the owner assumed that the lender would foreclose
quickly and was surprised that they did not and instead had their own financial
difficulties which led to their bankruptcy.
those facts were also not provided, so we can only guess why the owner vacated
and the lender did not foreclose.
months ago Robinson moved his pool table into the dining room, installed his
washer and dryer, and placed his bed and office equipment into the home. He
turned on the utilities. And then he called the locksmith to change the locks.
And hand him the new keys.
neighbors expressed their unhappiness to Robinson in a meeting at the property.
Robinson responded by calling the police. “I didn’t file charges against them”
he reportedly said.
Robinson Sr. did however file an “Affidavit of Adverse Possession” with the
Denton County Clerk. I obtained a copy. In the Affidavit Robinson states “. . .
I am claiming ownership of the above described property peaceably.”
a mere claim of ownership does not so easily defeat the true owner’s rights.
Yet this is troubling because Texas adverse possession laws (sometimes called
“squatter’s rights”) are complex and can be used to at least cause expensive
problems to the true owner.
– there’s more. Recently the Fort Worth Star-Telegram reported on similar
filings in Tarrant County. Paul Roper filed virtually the same Affidavit with
respect to Mansfield property, then Anthony Brown signed an identical
Affidavit. Also for Mansfield property. Those two Affidavits of Adverse
Possession – Roper and Brown – were filed on the same date with the Tarrant
County Clerk. Same time too.
ultimately led the Tarrant County District Attorney to instruct the Tarrant
County Clerk to stop recording the Affidavits. Meanwhile, predictably,
litigation has started.
Texas law, an individual can properly claim ownership if s/he occupies the
property for a term of years. There are other requirements. The occupancy must
be open, notorious, hostile and adverse to the true owner. Payment of real
estate taxes can greatly help the “squatter’s” claim, but it is not a strict
owners and lenders need to be aware of this sticky problem, particularly if the
owners and lenders are non-resident in Texas and trust others to check on their
properties. The risk is reduced if occupants use property pursuant to written
Leases. If, however, an occupant repudiates the Lease but continues to occupy
the property, then that occupant might also attempt to file a “squatter’s claim”
of adverse possession.
1. Check your properties constantly. Owners need to know
your tenants and know who is in occupancy at all times. Lenders need to
know their owners.
2. Check the local Deed Records constantly. You might
find that an Affidavit of Adverse Possession has been filed. Or a tax
lien. Judgment lien. Mechanic’s lien. Deed of Trust lien. There can be any
number of surprises and the time to deal with them is now, before they
ripen into a much larger problem.
3. Check your Leases constantly. Be sure that you have
a complete (that means all exhibits, schedules, attachments, amendments
and renewals) fully-signed Lease and Guaranty on file for each tenant.
** Full disclosure. Content for
this article came from the Dallas Morning News, Fort Worth Star-Telegram,
Denton County Clerk and Tarrant County Clerk. To my knowledge no allegations
have been proven in a Court of Law and consequently, they are only allegations.
Reprinted with the permission of North Texas Commercial Association of REALTORS®, Inc.