Texas Statute of Limitations Related to Title of Real Property

[Angela W.]

Texas Statute of Limitations (SOL) Related to Title of Real Property

While not exhaustive, below is a list of liens and judgments along with the Texas Statute of Limitations that may be filed or found in the real property records or county clerk’s office. For the complete and up-to-date constitution and statutes, check the Texas gov website.

What is a statute of limitation (SOL)?

A statute of limitation is the maximum time a claimant has to initiate a lawsuit against a defendant(s). That statute of limitation begins when the claimant becomes injured, wronged, or when debt default occurs (payment due date). In Texas the statute of limitation expires after the maximum amount of time allowed has run.

What does it mean when SOL expires?

After the specified SOL time has run, a claimant can no longer initiate legal proceedings against the defendant(s). However, there are exceptions. One of the most common exceptions is when the claimant discovered the hidden injuries. For instance, claimants may be protected by the fraudulent concealment rule, where he/she discovered the fraudulent act after the date of actual injury.

Another way statute of limitations is extended is through tolling. Some court proceedings may toll the statute of limitations. Tolling is a legal term for pausing the statute of limitation. For instance, when a person or individual files bankruptcy or where there is a probate proceeding, the statute of limitations for debtors to collect is tolled.

Abstracts of Judgment: Private Creditors

• TEX. PROPERTY CODE §52.006(a): Private creditor’s judgment lien expires ten (10) years after filing in the County Clerk’s Office.
• “Dormancy”: If the underlying abstracted judgment goes “dormant” meaning 10 years with no writ of execution, judgment lien may become unenforceable sooner than 10 years after filing of Abstract of Judgment.
• Re-abstracting and filing the new abstract: When a re-abstract is created, it becomes a new separate abstract judgment lien, thereby it does not continue an existing abstract judgment lien.

Abstracts of Judgment: State of Texas

• TEX. PROPERTY CODE §52.006(b): State of Texas judgment lien expires 20 years after filing in the County Clerk’s Office.
• Re-abstracting and filing a new abstract prior to expiration of existing State of Texas judgment lien: This creates a new judgment lien for another 20 years having priority back to the filing date of prior judgment lien.
• In 2007, SOL changed from 10 years to 20 years and applies to all State of Texas judgment liens that did not expire under prior law as of 9/1/07.

What is a “State of Texas judgment”?

• TEX. PROPERTY CODE §52.006(b): Judgment in favor of the State of Texas or any Texas state agency.
• This does not include judgments in favor of counties or municipalities, their boards, departments, or agencies, or special taxing entities such as municipal utility districts.

What is a “State agency”?

• TEX. GOVERNMENT CODE §403.055: Means “board, commission, council, committee, department, office, agency, or other governmental entity in the executive, legislative, or judicial branch of state government”
• In addition, PROPERTY CODE §52.006(b) specifically includes Texas public four-year colleges and universities (but not two-year junior/community colleges).

Abstracts of Judgment: Federal Judgments

• 28 United States Code §3201: Federal judgment lien expires 20 years after filing in the County Clerk’s Office.
• Re-filing prior to expiration continues the original judgment lien for an additional 20 years (40-year possible total lifetime).
• “Federal judgment”: Judgment rendered in federal court and is in favor of the United States of America or one of its agencies, departments, or instrumentalities.

Acknowledgments: Defective Certificate.

• “Fatal” defects: Lack of statutory certificate form; omission of acknowledger’s name; absence of state-provided officer’s seal.
• Document filed prior to September 1, 2007: Acknowledgement defect can be ignored if in records for more than 4 years [TEX. CIVIL PRACTICE & REMEDIES CODE §16.033(a)(8), prior law].
• Document filed after August 31, 2007: Acknowledgement defect can be ignored if in records for more than 2 years [TEX. CIVIL PRACTICE & REMEDIES CODE §16.033(a)(8) as amended].

Ad Valorem Property Taxes

• “Delinquent”: Unpaid on February 1st following the year in which unpaid taxes were assessed.
• Real property: Statutory lien expires 20 years after taxes become delinquent [TEX. TAX CODE §33.05(a)(2)].
• Personal property: Statutory lien expires 4 years after taxes become delinquent [TEX. TAX CODE §33.05(a)(1)].
• Abstracted judgments for taxes: Apply the appropriate judgment lien limitation, not tax-lien limitation.

Child Support Liens

• TEX. FAMILY CODE §157.318(a), prior law: Child Support Lien Notice or Abstract of Judgment filed prior to September 1, 2009: No limitation.
• TEX. FAMILY CODE §157.318(d) as amended: Child Support Lien Notice or Abstract of Judgment filed on or after September 1, 2009: Expires 10 years after filing (re-filing prior to expiration creates a new lien with priority relating back to the first filing).

Deeds

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.051: Cause of action to set aside, rescind, or reform expires 4 years after accrual; Trustees of Casa View Assembly of God Church v. Williams, 414 S.W.2d 697].
• Discovery Rule applies: Limitation begins to run from the time when the claimant knew or should have known about the cause of action.

Deed of Trust Liens: Non-Federal Beneficiary/Payee

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.035: Deed of Trust lien becomes barred 4 years after the original or extended maturity date of the secured obligation.
• Exception: Extended to 6 years if secured note is acquired by the FDIC as receiver or conservator of a failed financial institution before collection becomes barred under state law; additional 2 years also benefits assignee who acquires the note from FDIC [12 U.S.C. 1821(d)(14); Jackson v. Thweatt, 883 S.W.2d 171].

Deed of Trust Liens: Federal Beneficiary as Payee

• 28 U.S.C. 2415; U.S. v. Alvarado, 5 F.3d 1425: Deed of Trust lien does not become barred by passage of time, i.e. no limitation.
• Includes Deeds of Trust in favor of: United States of America, Small Business Administration, Secretary of Housing and Urban Development, Secretary of Veterans Affairs, and Farm Service Agency (formerly Farmers Home Administration).

Earnest Money Contract: Specific Performance

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.004(a)(1): Cause of action becomes barred 4 years after it accrues (other party defaults under the Contract).
• Additionally, this applies to the seller’s claim to earnest money as liquidated damages for the purchaser’s default under the Earnest Money Contract.

Federal Tax Liens: Income Tax

• 26 U.S.C. 6502(a)(1): Income Tax: IRS Code lien expires 10 years after assessment of tax;
• 26 U.S.C. 6323(g)(3): When “re-filing”, There must be a new notice of Federal Tax Lien within 1 year preceding 30 days after expiration of this 10-year period giving this new Notice priority back to the filing date of the original notice.
• “Last Day for Refiling” the notice of Federal tax Lien has expired after all dates have passed. According to 26 U.S.C., specific date as ascertainable.

Federal Tax Liens: Estate Tax and Gift Tax

• 26 U.S.C. 6324(a): Federal Estate Tax: Inchoate lien aka no notice-filing required expires 10 years after the date of decedent’s death.
• 26 U.S.C. 6324(b): Federal Gift Tax: Inchoate lien aka no notice-filing required expires 10 years after the date of transfer, but subsequent sale by the transferee to bona fide purchaser automatically divests tax lien from the gift real estate.

Home Owners Association or Property Owners Association Assessment Liens

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.035: Contractual liens created by restrictions and condominium declarations to secure HOA/POA assessments become barred 4 years after due date.
• However, as a practical matter, do not rely on limitations as eliminating an unreleased HOA/POA lien notice unless a resale certificate or other fee-status report from or on behalf of the Association shows the assessment as no longer collectible.

Mental Health and Mental Retardation Liens (MHMR)

• TEX. HEALTH & SAFETY CODE §533.004: Perfected MHMR lien has no limitation.
• Mental Health and Mental Retardation Lien secures recoupment of the cost of providing support, maintenance, and treatment to patients in a Texas Department of Mental Health & Mental Retardation facility.
• When statutory notice is filed in the County Clerk’s Office where the obligor’s real estate is located, a lien attaches to the non-exempt property of the patient or person legally responsible for the patient’s support.

Mechanic’s Liens: Voluntary

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.035: Contractual Mechanic’s Lien or Mechanic’s Lien Contract: Enforcement by foreclosure is barred 4 years after payment of the contract price became due.

Mechanic’s Liens: Involuntary

• §37, TEX. CONSTITUTION; TEX. CIVIL PRACTICE & REMEDIES CODE §16.004(a)(3): Constitutional Mechanic’s Lien lawsuit to enforce is barred 4 years after the underlying debt became due.
• A “constitutional lien” arises automatically, without the necessity of filing any notice, in favor of a subcontractor or supplier who deals directly with the owner and not through a general contractor.

Mechanic’s Liens: Involuntary

• TEX. PROPERTY CODE §53.158(b): Statutory Affidavit of Claim where owner’s residence on owner’s land: If the claimant does not bring suit, lien claim becomes barred maximum of sixteen (16) months after last date on which claimant did labor or furnished materials.
• TEX. PROPERTY CODE §53.158(a): Statutory Affidavit of Claim for all other construction. If claimant does not bring suit, lien claim becomes barred maximum of twenty-nine (29) months after last date on which claimant did labor or furnished materials.

Municipal Liens

• TEX. TRANSPORTATION CODE §313.054(d): Street Improvements aka paving lien. If the obligation is held by the municipality, there is no limitation period.
• TEX. HEALTH & SAFETY CODE §342.007(e): Statutory Health/Safety Liens such as weed-mowing, brush removal, and demolition of substandard structures. When a municipality has filed its notice of lien in the real estate records, there is no limitation period.

Restitution Liens

• TEX. CODE OF CRIMINAL PROCEDURE Art. 42.22, §§12(a), 12(b): State of Texas including victim compensation lien expires 10 years after filing, but can be extended for 10 years by refiling before expiration and not subject to dormancy.

State Tax Liens

• TEX. TAX CODE § 13.105: “Tax Lien; Period of Validity (a) The state tax lien on personal property and real estate continues until the taxes secured by the lien are paid.”
• However, TEX. TAX CODE §111.202: Title 2 Taxes including Sales, Use, Excise, Franchise, Gross Receipts, Business Permit, Severance, and Inheritance Taxes suit to collect becomes barred 3 years after the last filing of a tax lien notice.

State Tax Liens: Labor Code & Employers

(Texas Workforce Commission)

• TEX. LABOR CODE §213.033(a): Unpaid Unemployment Compensation Contribution. A lawsuit to collect from the employer is barred 3 years after contribution became due.
• TEX. TAX CODE §§61.081, 61.082: Wage Lien aka “Payday Lien” vs. employer (for benefit of employee) has no limitation.

State Tax Liens: Labor Code & Employees

(Texas Workforce Commission)

• TEX. LABOR CODE §§212.006, 213.033(a): Overpaid Unemployment Compensation Benefits. Collection suit against an employee is barred 3 years after reimbursement becomes due.

Substitute Trustee Lacking Recorded Appointment

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.033(a)(7): Trustee’s Deed filed prior to September 1, 2007: Suit alleging Substitute Trustee’s lack of authority becomes barred 4 years after Trustee’s Sale, prior law.
• TEX. CIVIL PRACTICE & REMEDIES CODE §16.033(a)(7), as amended effective June 15, 2008: Trustee’s Deed filed on or after September 1, 2007: Suit alleging Substitute Trustee’s lack of authority becomes barred 2 years after Trustee’s Sale.

Surveyor’s Liability for Survey Error

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.011: There is no liability 10 years after survey was completed. This can be extended by 2 years if a written claim for damages was submitted to the surveyor within 10 years after completion of survey.

Tax Sales, Suit to Set Aside

• TEX. CIVIL PRACTICE & REMEDIES CODE §16.002(b): Tax Warrant Seizure. One (1) year after the date of Sheriff’s Sale.
• TEX. TAX CODE §33.54(a)(1): Ad Valorem Tax Lien Foreclosure on non-homestead, nonagricultural, and surface-only. One (1) year after filing date of the Sheriff’s Tax Deed.
• TEX. TAX CODE §33.54(a)(2): Ad Valorem Tax Lien Foreclosure on homestead, agricultural, or minerals with surface. Two (2) years after filing date of Sheriff’s Tax Deed.

Tax Sales, Suit to Set Aside

• TEX. TAX CODE §34.05(f): Re-sale by Taxing Unit Taking Title at Tax Sale. 1 year after date on which the re-sale occurred.

Water Control & Improvement District Lien

• TEX. WATER CODE §51.509: District charges/assessments for maintenance and operation of works, facilities, and services. There is no limitation, i.e. “No law providing limitations against actions for debt shall apply”.

Texas Attorney Angela Walter