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Texas Trespass to Try Title

© 2014 Mark Courtois

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.