Background.  Trespass  to try title is the cause of action for determining title to lands,  tenements, or other real property and is governed by chapter 22 of the  Texas Property Code. Tex. Prop. Code Ann. § 22.001. Careful review of  the pleading requirements of Chapter 22 is recommended before such an  action is filed.  A trespass to try title action is the exclusive method  to adjudicate rival claims of title to real property. Vernon v. Perrien,  390 S.W.3d 47, 54 (Tex. App. - El Paso 2012, pet denied.).  To maintain  an action of trespass to try title, the person bringing the suit must  have title to the land sought to be recovered. Ramsey v. Grizzle,  313 S.W.3d 498, 505 (Tex. App.--Texarkana 2010, no pet.).  A plaintiff's  right to recover depends on the strength of his or her own title, not  the weaknesses of the title of his or her adversary.  In a  trespass-to-try-title action, the plaintiff is required to prove his or  her title by proving (1) a regular chain of title of conveyances from  the sovereign to the plaintiff; (2) a superior title to that of the  defendant out of a common source; (3) title by limitations; or (4) prior  possession which has not been abandoned. Teon Mgmt., LLC v. Turquoise Bay Corp., 357 S.W.3d 719, 728 (Tex. App.--Eastland 2012, no pet. h.).


Claim for Improvements.  A defendant in a trespass to try title action who is not the rightful  owner of the property, but who has possessed the property in good faith  and made permanent and valuable improvements to it maybe entitled to  compensation for the improvements from the rightful owner. Tex. Prop.  Code Ann. § 22.021.  The defendant may be entitled to recover the amount  by which the estimated value of the defendant's improvements exceeds the  estimated value of the defendant's use and occupation of and waste or  other injury to the property; or liable for the amount by which the  value of the use and occupation of and waste and other injury to the  property exceeds the value of the improvements and for costs. Id.  Alleged improvements are valued at the time of trial, but only to the  extent that the improvements increased the value of the property; and  use and occupation is valued for the time before the date the trespass  action was filed that the defendant was in possession of the property,  but excluding the value resulting from the improvements made by the  defendant or those under whom the defendant claims. Id.  A defendant is required to have had the property in good faith adverse  possession for at least a year before the trespass action was filed. Id. §22.021(c). When improvements are alleged, a defendant is not liable  for damages for injuries or for the value of the use and occupation more  than two years before the date the action was filed, and the defendant  is not liable for damages or for the value of the use and occupation in  excess of the value of the improvements. Id. §22.021(c).


Payment for Improvements and Writ of Possession. If the plaintiff obtains a judgment for the contested property, but the  defendant obtains a judgment for the value of the defendant's  improvements in excess of the defendant's liability for use, occupation,  and damages, a writ of possession may not be issued until the first  anniversary of the judgment unless the plaintiff pays to the clerk of  the court for the benefit of the defendant the amount of the judgment in  favor of the defendant plus interest. Id. §22.022.  If after a  trespass to try title action a plaintiff does not pay a judgment awarded  to a defendant, plus accrued interest, before the first anniversary of  the judgment and if the defendant, before the sixth month after the  first anniversary of the judgment, pays the value of the property, less  the value of the defendant's improvements, to the clerk of the court for  the benefit of the plaintiff, the plaintiff may not obtain a writ of  possession or maintain any proceeding against the defendant or the  defendant's heirs or assigns for the property awarded to the plaintiff  in the trespass to try title action. Id. §22.023. 

If the  defendant does not exercise the option to pay during the six month  window, a plaintiff may apply for a writ of possession as in other  cases. Id.


Removal of Improvements.  A  defendant in a trespass to try title action who is not the rightful  owner of the property in controversy may remove improvements made to the  property only if: 1) the defendant, and those under whom the defendant  claims, possessed the property, and made permanent and valuable  improvements to it, without intent to defraud; and 2) the improvements  can be removed without substantial and permanent damage to the property.  Id. §22.041(a).  The Defendant cannot remove the improvements  until pleading specific facts regarding the improvements, obtaining a  court order, and posting a bond as required as required by the Court,  conditioned on the removal of the improvements in a manner that substantially restores the property to the condition it was in before  the improvements were made. Id. §22.041(b), (c). The Court may  also require the Defendant to satisfy a money judgment in favor of  Plaintiff before allowing a Defendant to remove improvements. Id. §22.044.


Statute of Limitations.  The applicable limitations period seems to depend largely on Plaintiffs choosen theory to establish title.   In the case of a forged deed, courts have applied either the ten-year or twenty-five-year limitations period to recover real property under a forged deed.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, 16.028; Wilhite v. Davis, 298 S.W.2d 928, 934 Dallas 1957, no writ) (applying ten-year statute of limitations in trespass to try title suit involving a forged deed).  A four-year limitations period has been applied in a suit to quiet title and trespass to try title where the claim is that a wrongful deed resulted from fraud. See Tex. Civ. Prac. & Rem. Code § 16.004; Matthis v. Stockdick, 189 S.W.2d 106, 108 (Tex. Civ. App.—Galveston 1945, writ ref'd) (quiet title/trespass to try title); Hall v. Miller, 147 S.W.2d 266, 269 (Tex. Civ. App.—San Antonio 1941, writ dism'd judgm't cor.)(quiet title/trespass to try title).

Trespass to Try Title

© 2014 Mark Courtois

© 2020 Funderburk Funderburk Courtois, LLP.   All rights reserved.

Unless otherwise noted, attorneys in the firm are not certified by the Texas Board of Legal Specialization.

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