All Forum Posts by: Davido Davido

Some person has filed an affidavit that constitutes sworn testimony as to the fact that they are (were) in possession of the property and claimed exclusive right to the property.   It most likely means that at one time one heir intended to claim full right to the property against another heir, but failed to complete a suit to do so.   I'd find out who it was that filed the affidavit, and go talk to him/her.  If the property is being sold, then the person who filed the affidavit may be dead or otherwise no longer involved.  Find out.  Here is a sample affidavit;  http://joshblackman.com/blog/wp-content/uploads/2013/08/Affidavit.pdf

The affidavit is generally used when one co-tenant heir wants sole title against another heir(s).  The statute authorizing (requiring) an affidavit of adverse possession is:

2017 Texas Statutes; CIVIL PRACTICE AND REMEDIES CODE;  TITLE 2 - TRIAL, JUDGMENT, AND APPEAL; SUBTITLE B - TRIAL MATTERS; CHAPTER 16 - LIMITATIONS; CIVIL PRACTICE AND REMEDIES CODE; SUBCHAPTER B. LIMITATIONS OF REAL PROPERTY ACTIONS; Sec. 16.0265. ADVERSE POSSESSION BY COTENANT HEIR: 15-YEAR COMBINED LIMITATIONS PERIOD.


Sec. 16.0265. ADVERSE POSSESSION BY COTENANT HEIR: 15-YEAR COMBINED LIMITATIONS PERIOD. (a) In this section, "cotenant heir" means one of two or more persons who simultaneously acquire identical, undivided ownership interests in, and rights to possession of, the same real property by operation of the applicable intestate succession laws of this state or a successor in interest of one of those persons.

(b) One or more cotenant heirs of real property may acquire the interests of other cotenant heirs in the property by adverse possession under this section if, for a continuous, uninterrupted 10-year period immediately preceding the filing of the affidavits required by Subsection (c):

(1) the possessing cotenant heir or heirs:

(A) hold the property in peaceable and exclusive possession;

(B) cultivate, use, or enjoy the property; and

(C) pay all property taxes on the property not later than two years after the date the taxes become due; and

(2) no other cotenant heir has:

(A) contributed to the property's taxes or maintenance;

(B) challenged a possessing cotenant heir's exclusive possession of the property;

(C) asserted any other claim against a possessing cotenant heir in connection with the property, such as the right to rental payments from a possessing cotenant heir;

(D) acted to preserve the cotenant heir's interest in the property by filing notice of the cotenant heir's claimed interest in the deed records of the county in which the property is located; or

(E) entered into a written agreement with the possessing cotenant heir under which the possessing cotenant heir is allowed to possess the property but the other cotenant heir does not forfeit that heir's ownership interest.

(c) To make a claim of adverse possession against a cotenant heir under this section, the cotenant heir or heirs claiming adverse possession must:

(1) file in the deed records of the county in which the real property is located an affidavit of heirship in the form prescribed by Section 203.002, Estates Code, and an affidavit of adverse possession that complies with the requirements of Subsection (d);

(2) publish notice of the claim in a newspaper of general circulation in the county in which the property is located for the four consecutive weeks immediately following the date the affidavits required by Subdivision (1) are filed; and

(3) provide written notice of the claim to the last known addresses of all other cotenant heirs by certified mail, return receipt requested.

(d) The affidavits required by Subsection (c) may be filed separately or combined into a single instrument. The affidavit of adverse possession must include:

(1) a legal description of the property that is the subject of the adverse possession;

(2) an attestation that each affiant is a cotenant heir of the property who has been in peaceable and exclusive possession of the property for a continuous, uninterrupted period during the 10 years preceding the filing of the affidavit;

(3) an attestation of cultivation, use, or enjoyment of the property by each affiant during the 10 years preceding the filing of the affidavit;

(4) evidence of payment by the affiant or affiants of all property taxes on the property as provided by Subsection (b) during the 10 years preceding the filing of the affidavit; and

(5) an attestation that there has been no action described by Subsection (b)(2) by another cotenant heir during the 10 years preceding the filing of the affidavit.

(e) A cotenant heir must file a controverting affidavit or bring suit to recover the cotenant heir's interest in real property adversely possessed by another cotenant heir under this section not later than the fifth anniversary of the date a right of adverse possession is asserted by the filing of the affidavits required by Subsection (c).

(f) If a controverting affidavit or judgment is not filed before the fifth anniversary of the date the affidavits required by Subsection (c) are filed and no notice described by Subsection (b)(2)(D) was filed in the 10-year period preceding the filing of the affidavits under Subsection (c), title vests in the adversely possessing cotenant heir or heirs in the manner provided by Section 16.030, precluding all claims by other cotenant heirs.

(g) A bona fide lender for value without notice accepting a voluntary lien against the real property to secure the adversely possessing cotenant heir's indebtedness or a bona fide purchaser for value without notice may conclusively rely on the affidavits required by Subsection (c) if:

(1) the affidavits have been filed of record for the period prescribed by Subsection (e); and

(2) a controverting affidavit or judgment has not been filed during that period.

(h) Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160 acres. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(i) Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor's claim extends to the boundaries specified in the instrument.

Added by Acts 2017, 85th Leg., R.S., Ch. 742 (S.B. 1249), Sec. 1, eff. September 1, 2017.

@Dustin Mathenia,   When you buy a note a deep discount, getting paid back the full value of the note can be just as profitable as becoming owner of the property at less than market value.   Be sure to understand that if you buy an assignment of the 2nd lien for $30k you can bid the full value ($105k) of that lien at the foreclosure auction.  That fact would be significant if the market value of the property is high.  For example, if the property is worth $1 million and the owner has no homestead exemption. Then the deal starts looking quite attractive, even if you don't expect to be the winning bidder.   You could bid $530k, which is the full pay off amount of the first ($425) plus all you are owed on the second ($105k).  Then, if you are outbid by someone willing to pay $600k for the million dollar property, you would still profit $70k on your $30 to $35k investment (your costs would be $30k to buy the note +cost of foreclosure + lost opportunity and interest on your $30k during the foreclosure period). 

Assuming you were outbid, you'd get paid $105k + your foreclosure costs. Spending $35k to get $105k in a year's time is 200% ROI -more than most investors expect. And if the foreclosure goes smoothly enough to complete in half a year, the ROI becomes 400% Annualized.

@Todd Wheatley,  The properties with problems that almost everyone else avoids, can also be the properties that a creative or dedicated RE investor makes the most money on.   Find a cheaper way to solve this problem than anyone else, and you've found another way to profit when no one else will.

Redirecting water drainage is fairly simple (downspouts and grading). Add a company that injects expanding foam under the foundation. Pad the figures for the unexpected. If the sales price works, do the deal, get the knowledge and you'll never be intimidated by a similar issue.

One option to consider may be advertising along these lines; "Rent Reduced for work -21 country acres with mobile home (needs lots of work)."  Adds like that placed in your local Craigslist, FaceBook Marketplace, and/or Offer Up usually bring lots of interest.   You could figure up what the current value would be of renting just the land, then add a percentage (20% to 50%) to that for installed utilities (power, water, Septic).  Tell interested parties, that you're only looking for someone with both the ability and the will to do the repairs that you want done (list them).    In exchange for doing that work over the period of X months their rent would be greatly reduced  (to the market rate for only 20 acres of land with utilities).  Tell the prospects that you'll provide all the necessary materials (If the tenant doesn't have a truck, then order them by phone and have them delivered).   

If money is tighter than time, limit the monthly purchase of materials to the amount of rent you collect.   This allows you to have your tenant's rent paying for all the materials to improve your property, while the tenant is providing all the labor for free as well.   For his part the tenant gets a country place to stay for less than what rent would cost him/her elsewhere. 

Alternatively, or if the mobile is not worth saving, you can still rent the property as a site for someone to park their RV.  I don't know about your area of Texas, but here in WA 20 Acres to park an RV with a well, electric and septic would rent for $500 to $800/mo.    A rent of $500/mo applied to materials provides $6000/year of materials.  If the free labor provided by your tenant is also worth $6000, then this arrangement would improve your property $12,000/yr.  The cost is just your time for oversight and management.  If you focus on those improvements which add more value than they cost and you could be increasing your property value by as much as $20,000/yr.

@Scott Robinson,  Yes Citibank can be difficult to buy from.  The purchase of their mortgage may still be worth pursuing until/unless you get consistent reasons for an initial refusal to sell.  Most often, you'll get different statements/reasoning from each person you talk to.  Despite common statements to the effect "we don't do that", I have never encountered a bank with a formal policy (written) against selling their loans.  Considerable persistence and some experience asking the right questions is often required when purchasing an assignment of lien or mortgage from a large institution or government agency. 

In regard to doing repairs, obtaining a lien for your work and then foreclosing, I'm not familiar with Texas law, but in my state (Wa.) I have the right to a workman's lien if I am contracted to work on a home by of any owner of that property.   If it is important to insure that your lien is enforceable against all owners, it may be wise to limit repairs to those reasonably necessary to preserve or restore the home (no major improvements or additions).  Before spending serious money to acquire any property with complex problems, it would definitely be worth your dime to consult your RE Attorney.  You'll frequently need a Texas RE attorney if you target problem properties.  If you are not already working with an Attorney consider @Jerel Ehlert, who has already proven to be knowledgeable and helpful

In regard to @Greg H.'s statement, "Do not under any circumstances except a Quit Claim as these deeds are frowned on in Texas and will almost certainly in this case make the property un-insurable to a title company"   It may be almost certainly true.  However, there are many ways to profit from a property even without insurable title: rent for cash flow, lease-option with appropriate notice about title, sell at a discount, etc.  Just factor in the extra difficulties/costs of having a clouded title.
 

@Scott Robinson, in regard to your question, "buying her portion and renting the property out sounds great, but wouldn't the heirs have a right to some of that rental income?"   The heirs would be entitled to a portion of the rental "profits" if they are also willing to assume their prorated share of the costs of owning, maintaining and managing the property.  Your original post establishes, "The (wife of the deceased) does not have the money to pay the note and the kids will not help pay and wont sign for her to sell."   

Since the basic reality is that they (we all) have the only the rights we a willing to enforce, it is certainly possible that the children of the deceased might continue to do nothing, -or that they might delay doing anything for the three years required for you to utilize the Texas laws of Adverse Possession against the deceased's children. (A.P. can be very tricky, consult a local Attorney familiar with it).

Whether the children of the deceased claim their share or not, you would be the person in actual possession (even if you are renting the property to someone) and you would be the person with the greatest interest in the property.  You would be entitled to at least 50% of the profits, and you would be in control of the property unless and until a court decided otherwise.  Depending on your local law, you may be able to get a business license as a property manager, and then pay your own property management company another 10% -12% of the total rents as a property management fee.  Note that courts may not allow you to charge for property management unless you are licensed and keep a full accounting of income and expenses. (Appropriate books).

If you have access to sufficient funds, then rather than paying the amount past due on the existing mortgage, consider offering to buy that Mortgage from the lender who holds it now.  Since the mortgage is several months delinquent, it may be available at a discount.  If you get it, and the widow wants to get out of the property,  I'd offer to do all improvements needed to rent or sell the property, in exchange for a lien on the property at an amount that makes the improvements profitable.   Then I'd foreclose the mortgage or the home improvement lien against all parties who are not willing to sign a deed in lieu of foreclosure.  The pressure and time constraints of foreclosure may help you to work a deal with the heirs for a deed in lieu of foreclosure.  It can be expedient to offer the encouragement of some cash for the heirs to sign a Deed in Lieu. 

In my experience it is unlikely that previously inactive heirs will pay past due mortgages, liens and taxes for a small partial interest in the home.  

Just be aware that if the property does go to sale, anybody could buy it.  It is possible that in order to win the property you would have to bid more than the bank is owed.  That is why, I'd would do repairs in exchange of a workman's lien.  You can bid the full value of both, making it much more likely that you would win the bidding.  If there is an overage from foreclosing the mortgage (overage occurs when the foreclosure sale brings in more than is owed on the note that you bought), the excess money goes first to pay off the lien, then to each heir according to their percentage of ownership.  Buying the mortgage and foreclosing is not as simple, sure, or fast as acquiring Deeds in Lieu, or Quit Claim Deeds, but it does give you a path to clear title.

@Scott Robinson  There are many options with such a property -depending on what your goal is. Your post does not say what you intend to do with the property?  

Assuming that the decedent did not have a will, then (in Texas) his three children did each inherit a 1/3 interest of their father's 1/2 community property interest in the house.  Check out Texas inheritance laws. https://smartasset.com/estate-planning/texas-inheritance-laws  .  

Still, you do not need the children's permission to buy the 1/2 interest held by their stepmother.  If she is in possession, you can buy out her interest, take possession, rent the house and keep all the income.   If the children don't like it, they would need to sue for partition.

You can contact each of the children separately and attempt to purchase or bargain for a Quit Claim Deed from any or all of them.

If you acquire any party's interest in the property, you can put the property through probate, and likely get it sold. Or you can petition to Partition.

If you get possession of the house along with anyone's interest (color of title) and if you then use the home as though it was yours -to the exclusion of the other heirs, in three short years you can file suit to Quiet the Title completely in your name under Texas 3 year Adverse Possession Statute for those with Color of Title.  § 16.024 Texas Code  ,  or you could simply rent the property out for long term cash flow; or you could resell the portion of the property that you acquired along with your right to possession.  There are people who will buy partial interest in a home, especially when they also get immediate possession.   Selling a partial interest is mainly a question of proper marketing and how much you might need to discount the sales price from full market value.


Have fun.  Get it done.

Determine whether the last recorded owner of the property had a will.  If he did, the will most likely controls who has rights to the house.  If he had no will, then the NC law for intestate succession will control who has rights to the house.
https://ncestateplanning.com/dieing-without-a-will/

If the daughter and brother are the legal heirs, get a Quit Claim Deed from each of them.   Then you have the right to use the property as though it is your own.   

If you want to sell it with an insurable title, then you can either put it through probate, or (in time) file a Quiet Title action.   Most courts will require probate, but a Quiet Title action works when the time required to adversely possess a property has been met.

It is not necessary to have an insurable title to sell, rent or use the property.  However, you are unlikely to get top dollar without Title insurance.  So contact a title company, or three, tell them what you plan to do and see what they recommend.  Remember they are businesses trying to produce a profit, so don't just take their advice as though you have no other  option. 

@Brad Johnson, as mentioned by @Brenden Mitchum and @Jonathan Greene there are real dangers of developing discord when working informally with friends and family.   Discord will be avoided be not working together, but that is hardly a satisfactory outcome.  A solution is to formalize your business arrangement and keep it strictly business.  

Work with your sister to set a value you both agree on for each service that each person provides to the partnership.  Write out what each of you is expected to contribute and what share of the business each of you will receive for each part you contribute.   When a new service or business function is needed, write out a new or expanded operating agreement.  

There is good reason to set up all of your cash contributions to the partnership as a formal loan.  Establish an agreed interest rate with each new loan.  Decide whether your principal will be returned slowly in monthly payments or in a balloon payment due on a certain date.  Treat your partnership as a business and you'll each become better business people.  You'll each see the necessity, the value and the costs of the money your partnership needs, and you'll be able to quickly compare your current cost of funds with the market rates.

When you can not reach mutual agreement on the value of a service provided, disagreements can be settled by having one person create a proposal he/she believes to be a fair arrangement, then allowing the other partner to choose which side of the proposal to accept providing the service required, or paying for it (from his/her share of the cash flow).  Basically one of you bids to do it for $XXX.XX  or to pay your partner that amount    Alternatively, any function or service needed by your partnership can be put out to bid in your local marketplace.  However, you can only pay others for the services required to run your business if you have adequate cash flow.

I say do it.  Just write out your expectations and stick to what you wrote out or what you can mutually agree to change.