Benefits of Adverse Possession - Sample Letter to Owner of Realty Abandoned in Foreclosure 20120213

I have attached and appended below the text for a proposed letter to the owner of record of a home for which you have just filed a notice of adverse possession.  I wrote this one for Florida.  You can adapt it to your state.

My buddy Storm sent me this excerpt from a treatise on Adverse Possession:

ACTUAL, OPEN AND NOTORIOUS POSSESSION The trespasser must actually be in possession of the property and treat it as if he were an owner. This means there must be a physical presence on the land. It's not enough for someone just to make a claim, orally or in writing, of ownership. The words "open and notorious" simply mean that it must be obvious to anyone, including an owner who investigates, that a trespasser is on the land. Actual (physical) possession is usually open and notorious. Someone out in the field harvesting crops is obvious, as is a person pruning the rose garden that she planted on a strip of the neighbor's back yard. Similarly, a neighbor who just put a fence up slightly on the next-door property is obvious. So is the one who just poured a concrete driveway two feet over the boundary line. The point of this requirement is to let the owner know someone is occupying the land, so something can be done about it. An owner who allows someone to trespass for years without giving permission, complaining or taking action, the theory goes, loses the rights to the land.

 

Storm insists that an adverse possessor is a trespasser, and I disagree.  He knows a lot more about the law than I do, but I still disagree. I maintain that if the owner does not post a "Get off" notice or tell you to get off the land, or tell the sheriff/police to move you off the land, you are not a trespasser.  I maintain that only the equitable owner, lessee, agent, or (with written warning from the owner, lessee, or agent) law enforcers have the right to move an adverse possessor off the land.

Storm has told me that the adverse possessor must tell the owner about the adverse possession.  I disagree.  I believe openly taking adverse possession will be "obvious to … an owner who investigates" and if the owner does not investigate and does not hire someone as agent to remove trespassers in his absence, the owner has thereby waived notice.  Don't listen to me, though.  I'm not a lawyer (see notice at bottom).

My point here is that you can't even trust people knowledgeable in the law on points like this because they have NEVER LITIGATED A MATTER LIKE THIS and can only guess what the courts will say. That explains why I encourage would-be adverse possessors to find a lawyer and sue the various state officials for declaratory judgments to declare the rights of the adverse possessor and enjoin government officials to leave them alone unless the owner initiates a request without government tampering to remove the adverse possessor from the owner's realty.

 

 

I do concede, however, that the equitable owner, of record, whom I shall just call "owner" can become an adverse possessor's MOST POWERFUL ALLY when the owner has abandoned the realty in foreclosure.  Such owners usually feel frightened, worn out from moving, intimidated ty the foreclosure process, and fed up.  Such "abandoneers" usually hate that house and wish it would burn down so the lender wil only get scorched earth with a bucketful of ashes. 

Some, in spite of knowing that they ought to protect the land from vandals, termites, mold, etc,,  can't afford it and have lost all hope and motivation to care for the place. They have truly abandoned it with no thought of returning to it to care for it or occupy it.

The adverse possessor can put the owner's mind at ease by sending the below (and attached) letter.  It explains many of the benefits of adverse possession to everyone from owner to state government.  NOBODY LOSES, provided the adverse possessor behaves like a decent human being and responsible owner of real estate.

 

A similar letter to the sheriff or chief of police might have a beneficial effect.  They might actually start encouraging adverse possession instead of looking for reasons to arrest them.

 

I suggest a campaign of sending generic flyers to all of the state's legislators, judges, newspapers, radio stations, TV stations, and prosecutors, particularly those in the adverse possessors's county of interest.

For that reason, I encourage adverse possessors to seek one another out, meet and mingle, share experiences in meetings every week, 2 weeks, or month, and work together to inform the press, law enforcers and relevant  government officials, and attorneys about the benefits of AP.  Most lawyers need a re-education on the subject.

Tell your friends, family, associates, and church members about THIS adverse possession mailing list, and encourage them to join by sending email to

 

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Benefits of Adverse Possession –

Proposed Letter to Owner of Realty Abandoned in Foreclosure (20120213)

 

Date:         whenever

From:        Adverse Possessor
address

To:            Alleged Rightful Owner of Adversely Possessed Realty
address

Subject:     Adverse Possession of Residential Real Property (hereinafter "Realty") at address

Dear Alleged Rightful Owner of the Subject Realty:

Background.  I have attached a copy of my notice of adverse possession of the Realty. I filed the notice with the County Property Appraiser today.  I provide the copy to you as a courtesy formally to alert you of my intention to take adverse possession of your property at the above address because you abandoned it, possibly in response to the foreclosure the bank filed against you.

Purpose.  I intend to help you by protecting your property.  I write to you now to explain to you the adverse possession's financial benefits for you, your real property, your immediate neighbors, the neighborhood, the town, the County, law enforcers, the home owner association (if any),  and the people  and State of Florida.

What is Adverse Possession?  It is a means of someone taking and holding continuous, open (public), beneficial, possession of realty, paying taxes, government assessments, and any home owner association dues, demarking its boundaries with an enclosure if necessary, and maintaining and improving it, for a certain period of time, all without permission of the owner of record (in this case, you).  During this time, the owner of record can regain the realty by simply asking the adverse possessor to abandon it.

Overview of Benefits.  Many people consider it bold, audacious, and disrespectful to take adverse possession of real property.  They don't realize the ultimate good that always comes of it.  I want to explain that good to you.  Many benefits accrue to the above entities from adverse possession:

1. Loving Care. A family who lives in the Realty dwelling treats it like their home, caring for it as they would their own in the hope that someday it will become theirs permanently.
2. Mold and Mildew. Adverse possessors typically keep the air conditioning system running summer and winter.  This prevents dangerous buildup of mold and mildew that excessive humidity would cause if the A/C didn't operate for extended time.  As you know, mold constitutes a serious danger to health.
3. Pestilence. Adverse possessors typically keep the dwelling free of termites, roaches, bedbugs, spiders, centipedes, rodents and other vermin that constitute a health hazard to humans and that actually damage the dwelling, often necessitating costly repairs.
4. Druggies. Adverse possessors prevent drug dealers, marijuana grower, cocaine/crack/crystal meth addicts and other ne'er-do-wells from partying in and damaging the dwelling from neglect.
5. Thieves.  An unoccupied house often falls prey to thieves who steal appliances, plumbing fixtures, doors, window coverings, copper wiring and plumbing, and flooring.  It costs the owner a small fortune to replace these and put the house in condition suitable for selling it.  Adverse possessors prevent thieves from stealing those things.
6. Vandals.  Vandals and street thugs often see an unoccupied dwelling as a target of opportunity;  they break windows, destroy carpets, urinate or defecate on the floors, break holes in walls, destroy the roof, turn on the water and let water from stopped up sinks flood the floor, jam metal and other objects down into the plumbing, break toilet and sink porcelain, and so on.  Cleanup and repair can cost the owner a small fortune. Adverse possessors keep such damage from happening by increasing the vandals' risk of capture.
7. Freezes and Hurricanes. Adverse possessors typically mind the effect of the weather on plumbing and windows.  They install protective coverings to prevent violent storms from breaking windows.  They wrap water pipes or let outside faucets drip during freezes to keep them from bursting.  An unoccupied house gets no such respectful care, and related repairs can become costly.
8. Maintenance.  Residential realty always need routine maintenance such as lawn-mowing, hedge-trimming, edging, filling in of holes dug by dogs and other creatures, painting, landscaping, fixing broken windows, and so on..An occupant will typically do all this work, but the owner must pay to have others do it if no occupant lives there.
9. HOA Dues.  Adverse possessors must pay Home Owner Association (HOA) dues.  The owner must pay them if no adverse possessor lives there.
10. Taxes.  Adverse possessors must pay property taxes.  The owner must pay them if no adverse possessor lives there.
11. Property Management.  Managing all the above constitutes a significant enterprise of work and attention to duty for the adverse possessor.  The associated management fees would similarly tax the rightful owner.  The adverse possessor saves the rightful owner from having to pay that cost.
12. Property Values.  Because of the above realities, vacant residential realty invites wanton damage and undesirable lurkers, makes the neighborhood look deserted and unattractive, and reduces the curb appeal of the community.  Therefore, people will not want to live there.  That will diminish property values in the community in general.
13. 7-Year Savings.  Adverse possessors can pay taxes, homeowner dues, repair and maintenance costs for up to 7 years, and the rightful owner can, just before the statute of limitations expires, have the sheriff remove the adverse possessors removed for trespass.  Thus, adverse possession might not pose a risk of any kind to the rightful owner who doesn't sleep on his rights beyond 7 years.
14. Restored Realty Prices.  The adverse possessors can end up leaving the Realty AFTER property values have returned to their normally ridiculously high values because more people have jobs and the ability to buy them.
15. Litigation Risk.  It costs an enormous amount of money to litigate against people with respect to questions of Realty ownership and title.  Adverse possessors save the rightful owner much of that cost because they admit that they don't have ownership rights until after seven years.  On the other hand, an adverse possessor with profound knowledge of mortgages, lending practices, securitization, and the recent Financial Crisis Inquiry Commission Report's details about abuse of authority and duty in both government and the lending and securities industries could make for truly messy litigation assisting the prior owner of record in challenging REAL titular interest in the Realty.  It could easily cost $100,000 or more in legal fees, and put the alleged rightful owner (and other parties joined to the action) at risk of disgorgement and treble damages, and possibly exorbitant punitive damagesin favor of the prior owner of record.
16. Everybody Wins.  Adverse possessors keep the property in good shape, pay taxes and HOA dues, keep the community safer than otherwise, and help to increase property values.  I imagine that rightful owners of common sense will see adverse possessors as a boon, not a bane, to the rightful owner, to the adverse possessor's family, to the municipality, to the neighborhood, to the courts, and to law enforcers.

 
Check the Numbers.  If you have your accountant pull up your maintenance and cost records on residential Real Estate Owned for your review, you will find that adverse possessors can save you an enormous amount of money without putting you at risk losing the property permanently or having to spend substantially on ownership costs.

Permission: NO.  I do not ask your permission to possess the property.  In fact, I specifically deny having your permission.  I have ADVERSE possession of the Realty. 

Trespass.  At the same time, this letter should have helped you see the wisdom of  forbearance in accusing me of trespass.  I hope that you will communicate directly with me by telephone or mail if you intend to accuse me of trespass.  I believe we can settle the matter amiably and without law enforcement if you give me reasonable notice. 30 days' notice should suffice.  To reciprocate your kindness, I shall timely notify you of my intention to abandon the Realty. 30 days' notice should suffice. I shall provide you with an accounting on my expenses and costs associated with the adverse possession.

Adverse Possession - A Fine American Tradition Inherited from Britain.  Many people consider adverse possession a "something for nothing" scheme, scam, and con.    Some consider it grand theft and fraud.  Such thinking constitutes a delusion as you have seen from the foregoing presentation.  Adverse Possession actually protects property and puts it to the highest and best use for everyone concerned. 

Jurists have recognized this for centuries and the related facts show why the Florida Legislature enshrined adverse possession in Florida Statutes 95.12 through 95.18.  It ensures that the property receives reasonably good care, that it enjoys improvement, that the County receives related property taxes, and that the rightful owner has a HUGE window of opportunity to excise the adverse possessor from the land.  So it provides society with benefits such as I have explained above.  You get someone to look after your property and save you a ton of money, and it does not cost you a penny for 7 years. 

True, you could have fixed up the property and rented it out.  But you didn't.  You abandoned it to God-knows-what-fate.  The Legislature tends to favor adverse possession for putting realty to its highest and best use.  Therefore the Legislature has enacted the adverse possession laws to refine the statutory and common law of Britain that formed the basis of Florida's original state laws.

No Response Necessary.  You do not need to respond to this letter, but I shall appreciate it if you do. 

Memorandum of Law.  I have attached a memorandum of law for your reference.

Sincerely yours,

(Signature)

Intended Adverse Possessor

 

Memorandum of Law - Some Florida Laws Related to Adverse Possession

Florida Statutes as of 13 Feb 2012

95.12 Real property actions.—No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person's ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.

History.—s. 2, ch. 1869, 1872; RS 1287; GS 1718; RGS 2932; CGL 4652; s. 8, ch. 74-382; s. 521, ch. 95-147.

95.13 Real property actions; possession by legal owner presumed.—In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time prescribed by law. The occupation of the property by any other person shall be in subordination to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.

History.—s. 4, ch. 1869, 1872; RS 1289; GS 1720; RGS 2934; CGL 4654; s. 9, ch. 74-382.

95.14 Real property actions; limitation upon action founded upon title.—No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:

(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before commencement of the action; or

(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.

History.—s. 3, ch. 1869, 1872; RS 1288; GS 1719; RGS 2933; CGL 4653; s. 10, ch. 74-382.

95.16 Real property actions; adverse possession under color of title.—

(1) When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.

(2) For the purpose of this section, property is deemed possessed in any of the following cases:

(a) When it has been usually cultivated or improved.

(b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed.

(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.

(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.

History.—s. 5, ch. 1869, 1872; RS 1290; GS 1721; RGS 2935; CGL 4655; s. 1, ch. 19253, 1939; s. 1, ch. 22897, 1945; ss. 11, 12, ch. 74-382; s. 1, ch. 77-174; s. 1, ch. 87-194; s. 522, ch. 95-147.

¹95.18 Real property actions; adverse possession without color of title.—

(1) When the occupant has, or those under whom the occupant claims have, been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied is held adversely if the person claiming adverse possession made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

(2) For the purpose of this section, property is deemed to be possessed if the property has been:

(a) Protected by substantial enclosure;

(b) Cultivated or improved in a usual manner; or

(c) Occupied and maintained.

(3) A person claiming adverse possession under this section must make a return of the property by providing to the property appraiser a uniform return on a form provided by the Department of Revenue. The return must include all of the following:

(a) The name and address of the person claiming adverse possession.

(b) The date that the person claiming adverse possession entered into possession of the property.

(c) A full and complete legal description of the property that is subject to the adverse possession claim.

(d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT.

(e) A description of the use of the property by the person claiming adverse possession.

(f) A receipt to be completed by the property appraiser.

The property appraiser shall refuse to accept a return if it does not comply with this subsection. The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

(4) Upon the submission of a return, the property appraiser shall:

(a) Send, via regular mail, a copy of the return to the owner of record of the property that is subject to the adverse possession claim, as identified by the property appraiser's records.

(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.

(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.

(d) Maintain the return in the property appraiser's records.

(5)(a) If a person makes a claim of adverse possession under this section against a portion of a parcel of property identified by a unique parcel identification number in the property appraiser's records:

1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal description of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse possession claim.

2. The property appraiser may refuse to accept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the property appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.

(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s. 197.3335(3).

(6)(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not assigned a parcel identification number:

1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal description of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse possession claim.

2. The property appraiser may refuse to accept a return if the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.

(b) Upon submission of the return, the property appraiser shall:

1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;

2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and

3. Maintain the return in the property appraiser's records.

(7) A property appraiser must remove the notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser's records if:

(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;

(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record;

(c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or

(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession.

(8) The property appraiser shall include a clear and obvious notation in the legal description of the parcel information of any public searchable property database maintained by the property appraiser that an adverse possession return has been submitted to the property appraiser for a particular parcel.

History.—s. 7, ch. 1869, 1872; s. 6, ch. 4055, 1891; RS 1291; GS 1722; RGS 2936; CGL 4656; s. 1, ch. 19254, 1939; ss. 13, 14, ch. 74-382; s. 1, ch. 77-102; s. 523, ch. 95-147; s. 1, ch. 2011-107.

¹Note.—Section 4, ch. 2011-107, provides that "[t]his act shall take effect July 1, 2011, and applies to adverse possession claims in which the return was submitted on or after that date, except for the procedural provisions governing the property appraiser's administration of adverse possession claims included in s. 95.18(4)(c) and (d) and (7), Florida Statutes, and the provisions governing the payment of taxes included in s. 197.3335, Florida Statutes, as created by this act, which apply to adverse possession claims for which the return was submitted before, on, or after that date."

95.191 Limitations when tax deed holder in possession.—When the holder of a tax deed goes into actual possession of the real property described in the tax deed, no action to recover possession of the property shall be maintained by a former owner or other adverse claimant unless the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real property is adversely possessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed.

History.—s. 64, ch. 4322, 1895; GS 591; s. 61, ch. 5596, 1907; RGS 794; s. 2, ch. 12409, 1927; CGL 1020; ss. 1, 2, ch. 69-55; s. 1, ch. 72-268; s. 28, ch. 73-332; s. 1, ch. 77-174.

Note.—Former ss. 196.06, 197.725, 197.286.

95.192 Limitation upon acting against tax deeds.—

(1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no action shall be brought by the former owner of the property or any claimant under the former owner.

(2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the person to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 successive years at any time after the issuance of the patent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have abandoned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property described by the tax deed.

(3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her continues in actual possession 1 year after issuance of the tax deed and before an action to eject him or her is begun, subsections (1) and (2) shall not apply.

History.—s. 27, ch. 73-332; s. 201, ch. 85-342; s. 524, ch. 95-147.

95.21 Adverse possession against lands purchased at sales made by executors.—The title of any purchaser, or the purchaser's assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court proceedings authorizing the sale, whether jurisdictional or not, nor shall it be questioned because the sale is made without court approval or confirmation or under a will or codicil. The title shall not be questioned at any time by anyone who has received the money to which he or she was entitled from the sale. This section shall not bar an action for fraud or an action against the executor, administrator, or guardian for personal liability to any heir, distributee, or ward.

History.—s. 1, ch. 3134, 1879; RS 1293; GS 1724; RGS 2938; CGL 4658; s. 1, ch. 20954, 1941; s. 3, ch. 22897, 1945; s. 15, ch. 74-382; s. 1, ch. 77-174; s. 525, ch. 95-147.

 

 

 

 

***

WARNING:     I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.

 

***

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Patriot Computer Security

“Thugs” and “Mobsters” can come into your home and snatch your computer or copy your hard drive during your absence, undetected.  Information on your computer can lead them to other people with whom you communicate.  The thugs can read all your private info, and even find your passwords so they can sneak into your accounts and look at your correspondence without your detecting it. If the thugs get your passwords, they can stick viruses in your web sites and emails just to harass you and keep you busy with technical problems.  According to rumor, mobsters have suddenly locked numerous adverse possessors out of their houses and caused them to lose access to their computers.  Anyone could enter the house and steal the computers.

 

I recommend setting strict policies to hide your info from prying eyes of thugs and mobsters, especially if you have become a legal or political activist of some kind.  Also, if you host a politically sensitive web site, I encourage you to mirror it on an offshore server and register it is someone else’s name in case the thugs and mobsters get a court order for you to shut it down.

 

 

DON’T PICK STUPID PASSWORDS.  Make them 16 characters of mixed upper case, lower case, punctuation, and digit characters, and don’t spell out personal or family or pet or friend dates, addresses, phone numbers, etc.    DO NOT EVER TELL ANYONE YOUR PASSWORDS.

 

Consider these tools for keeping your data secure.

 

http://www.comodo.com free browser and antivirus tools with sandbox to try downloaded apps safely

http://www.truecrypt.org/ - encrypt a file or partition; nobody can decrypt it without your password and USB key

·         You can install windows on one partition and put all data files on a truecrypt partition, and dismount the truecrypt partition when you leave home or shut down.  VERY difficult to find or crack if you do it right.

http://eraser.heidi.ie/ total erase of a file, its name, EVERYTHIng about it

https://lastpass.com/ stores your passwords in the cloud

http://www.gnupg.org/ gnu privacy guard – encrypts emails using public/private keys; free security certificates for document signing

https://www.torproject.org/ anonymous browsing

http://www.carbonite.com/en/ provides total backup of your system in the cloud, annual fee

https://one.ubuntu.com/ another backup option, monthly or annual fee, 5G free.

 

http://www.ubuntu.com/ - download and burn the desktop version to a disk.  Then shutdown your computer and boot from the CD/DVD.  The UBUNTU operating system is linux, and it will boot up and let you install (don’t) or run live (DO).  This will give you a windows like user interface, very nice and clean and simple.  With it you can view all the files on your windows system.  NO VIRUSES.NO TROJANS.  Disk cannot be messed with,so you boot clean every time.  ABSOLUTELY SECURE, but still accesses internet.  You can umount your windows drives if you wish, very easily, to make them invisible to the system.

 

You can install and use the above software very fast with windows or ubuntu.  Ubuntu will let you move windows partition aside a little and create a small partition for booting ubuntu so you don’t have to boot from CD.  VERY FAST BOOT.  Virtually No viruses.

 

I have used UBUNTU a lot.  Stable and full of applications including office software.

 

If you use carbonite/ or ubuntu one, you can boot the ubuntu disk and back up your whole windows partition to the cloud so if your pc gets stolen, you still have everything in the cloud.

 

 

Professional snoopsters can eventually crack any security you set up.  Change your main passwords every month.  Become a randomly moving target as much as possible.  Unless you become a person of serious interest to you, they will probably NOT use a supercomputer to crack your passwords by brute force, so the above tools should work well for you.

 

My advice to any who want it (if you don’t want it, ignore this):

 

Keep your nose clean, stay out of harm’s way, don’t commit crimes or do illegal activities. Obey constitutional laws. Become and remain a righteous, noble human being, devoted to the pursuit of truth, beauty, and goodness. Learn the law and become disposed to using it for solving problems that you cannot negotiate away.  Associate with good people, not hoodlums, crooks, patriot myth mongers, people trying to skirt the law, ne-er-do-wells.  Develop a majestic and well balanced personality. Then, thugs will generally leave you alone.

 

 

 

 

***

WARNING:  I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.

***

Bob Hurt

Contact: Email  bh   f       t • Blogs: 1 2 3 • Law: E-letter Subscribe Donate Learn
2460 Persian Drive #70,  Clearwater,  Florida 33763  •  727 669 5511

 

***

English Law of Texas; eviction of $16 Texas House Squatter - adverse possession

Associated Press writer Norman Merchant just labored through a fog of confusion.  You can see the fog in his article at the below link.

$16 house? Dallas area man evicted after squatting

: http://www.foxnews.com/us/2012/02/06/16-house-dallas-area-man-evicted-after-squatting

Merchant wrote about Kenneth Robinson’s dilemma.  Robinson recently took a Dallas-area house by adverse possession.  The court just evicted Robinson because the equitable owner lost the house in foreclosure, and so the court ordered Robinson out so the trustee could sell the house at foreclosure auction to pay down the debt to the lender.

Merchant tried to explain adverse possession from the viewpoint of others who had little clue about it.  Merchant poorly evaluated the issue, leaving readers confused.  His article leaves the impression that adverse possession is something bad, and taking adverse possession of foreclosure-abandoned realty amounts to nothing more than squatting.  Look at the title of his article.

Merchant failed to refer to any of the following, which might have clarified the issues for readers:

1.       the adverse possession law in Texas Civil Practices & Remedies Code Sec.16.021 et seq. (“CPRC”);

2.      an authoritative article on the subject, like the one at http://www.lonestarlandlaw.com/Adverse.html;

3.      the English Law of Texas, from which adverse possession rights and duties hail.

In point of fact, the government must enforce the rights of adverse possessors (taking possession of someone else’s property) against everyone but the rightful owner who should exercise possessory dominion.  Throughout the USA, people who borrow money to buy a house sign a note and mortgage as unilateral adhesion contracts.  The mortgage CONVEYS the estate (realty) to the lender, or other mortgagee like MERS.  Black’s Law Dictionary 8^th Edition, page 3198, defines Mortgage as follows:

mortgage (mor-gij), n. 1. A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms. — Also termed (archaically) dead pledge. [Cases: Mortgages 1. C.J.S. Mortgages §§ 2–6.] 2. A lien against property that is granted to secure an obligation (such as a debt) and that is extinguished upon payment or performance according to stipulated terms. [Cases: Mortgages 145.C.J.S. Mortgages §§ 198, 200.] 3. An instrument (such as a deed or contract) specifying the terms of such a transaction. 4. Loosely, the loan on which such a transaction is based. 5. The mortgagee's rights conferred by such a transaction. 6. Loosely, any real-property security transaction, including a deed of trust. — Abbr. M. — mortgage,vb., the estate (the realty)

In the mortgage situation, the lender or nominee becomes mortgagee with right to force a foreclosure sale of the realty to raise money to discharge the associated.  The borrower becomes an “equitable” owner with possessory right, but also obligations to maintain and safeguard the property from disintegration of value.  In the foreclosure, the owner/borrower loses equitable title to the realty under action of the trustee in a deed of trust (non-judicial foreclosure state like Texas) or of the court in a judicial foreclosure state like Florida.

So,  the mortgagee cannot take possession or invade the properly maintained realty, in spite of having legal title because the borrower/owner of record has equitable or beneficial title.  Therefore, the lender/mortgagee or its agents like the servicer have no right to dispossess the adverse possessor without a court order, and the court will not give it till after the foreclosure.  Generally, the court will issue a writ of possession, and if necessary a writ of unlawful detainer or ejectment to empower the sheriff to remove the owner or adverse possessor from the realty.  The court did that in the case of Kenneth Robinson.  Black’s Law dictionary defines owners as follows:

owner.  One who has the right to possess, use, and convey something; a person in whom one or more interests are vested. • An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease).

beneficial owner. 1. One recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust. — Also termed equitable owner. [Cases: Trusts 139. C.J.S. Trover and Conversion § 251.] 2. A corporate shareholder who has the power to buy or sell the shares, but who is not registered on the corporation's books as the owner. [Cases: Corporations 135. C.J.S. Corporations § 282.] 3.Intellectual property. A person or entity who is entitled to enjoy the rights in a patent, trademark, or copyright even though legal title is vested in someone else. • The beneficial owner has standing to sue for infringement. A corporation is typically a beneficial owner if it has a contractual right to the assignment of the patent but the employee who owns the patent has failed to assign it. Similarly, a patent or copyright owner who has transferred title as collateral to secure a loan would be a beneficial owner entitled to sue for infringement.

equitable owner.  See beneficial owner (1).

legal owner.  One recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another. See TRUSTEE(1). [Cases: Trusts 133. C.J.S. Trover and Conversion §§ 245–246.]

Shortly after Texas began its life as a state, it adopted the English Common Law as its basic law.

http://www.texasslaveryproject.org/sources/TTR/display.php?f=TSP0065.xml

An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.

SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.

"Untitled," Telegraph and Texas Register, April 8, 1840

Laws related to adverse possession in Texas have an English law heritage stretching back 600 years.  No news reporter, county clerk, or cop, and few if any lawyers or judges in Texas have replete familiarity with those laws.  Therefore, they can  opine with authority that adverse possession was never intended for use as a method to acquire realty which the owner abandoned in fear of the travail of foreclosure.

Adverse Possession of homes abandoned in foreclosure provides many benefits.  You can read some of them here:

http://bobhurt.blogspot.com/2011/03/benefits-of-adverse-possession.html

These benefits help the lender, borrower, mortgagee, mortgagor, sheriff, police, courts, tax collectors, community, and the realty.  Therefore, it makes good sense for people who will care for a home to take adverse possession of it.

Of course they run the risk of the court or owner forcing them to move.  If the owner asks the Sheriff to do so, the Sheriff will issue a trespass warning, and the adverse possessor must move UNLESS the statute of limitations has expired.  In Texas that means the adverse possessor might have to possess the realty for 10 years.

I consider that a trivial issue because most people adversely possessing foreclosure abandoned realty know they will lose it within months to a few years and they will have to move.  SO what?  They can simply move to another abandoned house.

Yes, adverse possessors ought to keep a record of the condition of the realty and any improvements or repairs made, and possibly file a lien so they can recover the expenditures if the owner moves them out.  And adverse possessors ought to become good neighbors.  Doesn’t that go without saying for anybody taking possession of any property?

Norman Merchant did not address these issues when reporting the ouster of Kenneth Robinson from that Dallas-area house.  I imagine Kenneth will take possession of another abandoned house.  Why shouldn’t he?

***

WARNING:  I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.

Bob Hurt

Contact: Email  bh   f       t •
Blogs: 1 2 3 •
Law: E-letter Subscribe Donate Learn
2460 Persian Drive #70,  Clearwater,  Florida 33763  • 
727 669 5511

***

The Texas Constitution also contemplated wholesale adoption of the common law.  “Coongress,” it said, “shall, as early as practicable, introduce, by statute, the common law of England, with such modifications a our circumstances in their judgment may require

Texas law regarding adverse possession

Texas Civil Practice & Remedies Code

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.16.htm

CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE B. TRIAL MATTERS

CHAPTER 16. LIMITATIONS

SUBCHAPTER B. LIMITATIONS OF REAL PROPERTY ACTIONS

Sec. 16.021.  DEFINITIONS.  In this subchapter:

(1)  "Adverse possession" means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.

(2)  "Color of title" means a consecutive chain of transfers to the person in possession that:

(A)  is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty;  or

(B)  is based on a certificate of headright, land warrant, or land scrip.

(3)  "Peaceable possession" means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.

(4)  "Title" means a regular chain of transfers of real property from or under the sovereignty of the soil.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.022.  EFFECT OF DISABILITY.  (a)  For the purposes of this subchapter, a person is under a legal disability if the person is:

(1)  younger than 18 years of age, regardless of whether the person is married;

(2)  of unsound mind;  or

(3)  serving in the United States Armed Forces during time of war.

(b)  If a person entitled to sue for the recovery of real property or entitled to make a defense based on the title to real property is under a legal disability at the time title to the property vests or adverse possession commences, the time of the disability is not included in a limitations period.

(c)  Except as provided by Sections 16.027 and 16.028, after the termination of the legal disability, a person has the same time to present a claim that is allowed to others under this chapter.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 57, eff. Sept. 1, 1987.

Sec. 16.023.  TACKING OF SUCCESSIVE INTERESTS.  To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.024.  ADVERSE POSSESSION:  THREE-YEAR LIMITATIONS PERIOD.  A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.025.  ADVERSE POSSESSION:  FIVE-YEAR LIMITATIONS PERIOD.  (a)  A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:

(1)  cultivates, uses, or enjoys the property;

(2)  pays applicable taxes on the property;  and

(3)  claims the property under a duly registered deed.

(b)  This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.026.  ADVERSE POSSESSION:  10-YEAR LIMITATIONS PERIOD.  (a)  A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

(b)  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.  If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(c)  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.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1989, 71st Leg., ch. 764, Sec. 1, eff. Sept. 1, 1989.

Sec. 16.027.  ADVERSE POSSESSION:  25-YEAR LIMITATIONS PERIOD NOTWITHSTANDING DISABILITY.  A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.028.  ADVERSE POSSESSION WITH RECORDED INSTRUMENT:  25-YEAR LIMITATIONS PERIOD.  (a)  A person, regardless of whether the person is or has been under a legal disability, may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.

(b)  Adverse possession of any part of the real property held under a recorded deed or other recorded instrument that purports to convey the property extends to and includes all of the property described in the instrument, even though the instrument is void on its face or in fact.

(c)  A person who holds real property and claims title under this section has a good and marketable title to the property regardless of a disability arising at any time in the adverse claimant or a person claiming under the adverse claimant.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.029.  EVIDENCE OF TITLE TO LAND BY LIMITATIONS.  (a)  In a suit involving title to real property that is not claimed by this state, it is prima facie evidence that the title to the property has passed from the person holding apparent record title to an opposing party if it is shown that:

(1)  for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property;  and

(2)  during that period the opposing parties and those whose estate they own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years.

(b)  This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of the trust.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.030.  TITLE THROUGH ADVERSE POSSESSION.  (a)  If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.

(b)  A person may not acquire through adverse possession any right or title to real property dedicated to public use.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.031.  ENCLOSED LAND.  (a)  A tract of land that is owned by one person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land.

(b)  Possession of the interior tract by the owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless:

(1)  the interior tract is separated from the surrounding land by a fence;  or

(2)  at least one-tenth of the interior tract is cultivated and used for agricultural purposes or is used for manufacturing purposes.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.032.  ADJACENT LAND.  Possession of land that belongs to another by a person owning or claiming 5,000 or more fenced acres that adjoin the land is not peaceable and adverse as described by Section 16.026 unless:

(1)  the land is separated from the adjacent enclosed tract by a substantial fence;

(2)  at least one-tenth of the land is cultivated and used for agricultural purposes or used for manufacturing purposes;  or

(3)  there is actual possession of the land.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 16.033.  TECHNICAL DEFECTS IN INSTRUMENT.  (a)  A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years after the day the instrument was filed for record with the county clerk of the county where the real property is located:

(1)  lack of the signature of a proper corporate officer, partner, or company officer, manager, or member;

(2)  lack of a corporate seal;

(3)  failure of the record to show the corporate seal used;

(4)  failure of the record to show authority of the board of directors or stockholders of a corporation, partners of a partnership, or officers, managers, or members of a company;

(5)  execution and delivery of the instrument by a corporation, partnership, or other company that had been dissolved, whose charter had expired, or whose franchise had been canceled, withdrawn, or forfeited;

(6)  acknowledgment of the instrument in an individual, rather than a representative or official, capacity;

(7)  execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;

(8)  failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or

(9)  wording of the stated consideration that may or might create an implied lien in favor of the grantor.

(b)  This section does not apply to a forged instrument.

(c)  For the purposes of this section, an instrument affecting real property containing a ministerial defect, omission, or informality in the certificate of acknowledgment that has been filed for record for longer than two years in the office of the county recorder of the county in which the property is located is considered to have been lawfully recorded and to be notice of the existence of the instrument on and after the date the instrument is filed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1993, 73rd Leg., ch. 291, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 819, Sec. 1, eff. June 15, 2007.

Sec. 16.034.  ATTORNEY'S FEES.  (a)  In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court:

(1)  shall award costs and reasonable attorney's fees to the prevailing party if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith; and

(2)  may award costs and reasonable attorney's fees to the prevailing party in the absence of a finding described by Subdivision (1).

(b)  To recover attorney's fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises.  The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.

(c)  The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney's fees in an amount determined by the court to be reasonable.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 901, Sec. 1, eff. September 1, 2009.

Sec. 16.035.  LIEN ON REAL PROPERTY.  (a)  A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.

(b)  A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.

(c)  The running of the statute of limitations is not suspended against a bona fide purchaser for value, a lienholder, or a lessee who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by:

(1)  Section 16.062, providing for suspension in the event of death;  or

(2)  Section 16.036, providing for recorded extensions of real property liens.

(d)  On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.

(e)  If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.

(f)  The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

(g)  In this section, "real property lien" means:

(1)  a superior title retained by a vendor in a deed of conveyance or a purchase money note;  or

(2)  a vendor's lien, a mortgage, a deed of trust, a voluntary mechanic's lien, or a voluntary materialman's lien on real estate, securing a note or other written obligation.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 219, Sec. 1, eff. May 23, 1997.

Sec. 16.036.  EXTENSION OF REAL PROPERTY LIEN.  (a)  The party or parties primarily liable for a debt or obligation secured by a real property lien, as that term is defined in Section 16.035, may suspend the running of the four-year limitations period for real property liens through a written extension agreement as provided by this section.

(b)  The limitations period is suspended and the lien remains in effect for four years after the extended maturity date of the debt or obligation if the extension agreement is:

(1)  signed and acknowledged as provided by law for a deed conveying real property;  and

(2)  filed for record in the county clerk's office of the county where the real property is located.

(c)  The parties may continue to extend the lien by entering, acknowledging, and recording additional extension agreements.

(d)  The maturity date stated in the original instrument or in the date of the recorded renewal and extension is conclusive evidence of the maturity date of the debt or obligation.

(e)  The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 219, Sec. 2, eff. May 23, 1997.

Sec. 16.037.  EFFECT OF EXTENSION OF REAL PROPERTY LIEN ON THIRD PARTIES.  An extension agreement is void as to a bona fide purchaser for value, a lienholder, or a lessee who deals with real property affected by a real property lien without actual notice of the agreement and before the agreement is acknowledged, filed, and recorded.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 219, Sec. 3, eff. May 23, 1997.

The English Law of Texas

Compiled by Bob Hurt, 7 February 2012

Lawrence M. Friedman A History of American Law: Third Edition (2005), p. 115-116,

http://books.google.com/books?id=JndnEiydTiYC&lpg=PA115&ots=gvUWsPSmTe&dq=1840%20texas%20adopts%20common%20law%20of%20england&pg=PA117#v=onepage&q=1840%20texas%20adopts%20common%20law%20of%20england&f=false

… The Texas government later enacted a form of trial by jury, but not exactly in the American mold. [Edward L. Markham Jr., "The Reception of the Common Law of England in Texas and the Judicial Attitude Toward That Reception,  1840 -1859." 29 Texas L.  Rev. 904 ( 1951 ).".] The constitution of the republic of Texas (1836), in its declaration of rights, affirmed the right of an accused "to a speedy and public trial, by an impartial jury. ... And the right or trial by jury shall remain inviolate."

The Texas Constitution also contemplated wholesale adoption of the common law. "Congress," it said, "shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require" (art. IV, sec. 13). But Texas never really ''received "English law in any literal or classical sense. Rather, the republic adopted a Texas subdialect of the American dialect of law. There was thoroughgoing acceptance of trial by jury, "that ever-to-be prized system of jurisprudence," as the supreme court of Texas called it in 1840. [Edward v. Peoples, Dallam 359, 360 (Tex., 1840).]  From the very start, however, court organization and procedure merged law and equity. The constitution of 1845 specifically gave to the district courts jurisdiction "of all suits ... without regard to any distinction between law and equity." [Art IV, Sec. 10 – Joseph W. McKnight]   In 1840, the civil law was formally abolished; but Texas never fell under the yoke of common-law pleading in all its rigor. Rather, Texas retained "as heretofore" the civil law system of "petition and answer." Procedure was, in short, a kind of hybrid system. Judges and lawyers, in the early years, seemed genuinely ambivalent about which orf the two rival had the edge. On the one hand, civil law was strange and unfamiliar to most lawyers. The law of 1840, since it kept some aspects of civil law pleading, put courts in the position (as one judge said) of searching for "principles and criteria in a language generally unknown to us." This brought about "constant perplexities," which annoyed and delayed the courts "at each step." [Whiting v. Turley, Dallam 453, 455 (Tex., 1842)]  Yet another Texas judge condemned common-law pleading as "Bold, crafty, and unscrupulous."[Long v. Anderson, 4 Tex 422, 424 (1849).]  Still, a third judge took a middle view:

The object of our statutes on the subject of pleading is to simplify as much as possible that branch of the proceedings in courts, which by the ingenuity and learning of both common and civil law lawyers and judges had become so refined in its subtleties as to substitute in many instances the shadow for the substance.

Hamiton v.  Black,  Dallam 586, 587  (Tex. .  1844).

In the long run, the common law was bound to win. The civil law tradition was too alien and inaccessible to survive. But the practice in Texas did undermine the idea that strict common law pleading was either natural or desirable. What resulted was a procedure that used common law terms and some common law attitudes, but in a more streamlined and rational way. Peripheral Texas was, in short, free to do what other states could do only by breaking with habit and tradition. But in Texas, divergences from the common law did not look like reform; they looked like civil law survivals. In a sense there were; what survived, however, survived because it suited the needs and wants of Texas jurists.

Chunks of civil law also remained imbedded in the substantive law of Texas as well. Texas recognizes the holographic will-an un-witnessed will in the dead person's handwriting. Texas has also kept the community property system; indeed, Texas gave the system constitutional recognition. [Texas Const., 1845, art. VII, sec. 19.] Texas shares these "survivals" with Louisiana, and with a number of states carved out of Mexican territory, notably California. That these institutions lived on, despite the terrific pressure for common law, indicates either that they were tightly sewn in to the social fabric, or that they fulfilled some unique social function. The holographic will, for example, invited ordinary people to make wills by themselves, without consulting lawyers. The community property system, too, may have suited the facts of family life better than common law rules of marital. In fact, the common law rules were themselves in process of change.

Louisiana was the only solid, durable enclave of civil law. Here America swallowed up a territory with a sizeable population, a population centered in New Orleans, that was used to civil law forms. But Louisiana itself was in a state of great confusion. Its brand of civil law was a far cry from the elegance and system we associate with the civil law in nineteenth century .Europe. At the time of the Louisiana Purchase, Louisiana law was an arcane, bewildering hodgepodge of French and Spanish law, a melange of codes, customs, and doc trines of various ages. The French had settled Louisiana. but rhe Spanish had governed it from 1766 to 1803. Louisiana law was as baffling as the common law at its worst. Its "babel" of legislation, according to Edward Livingston , was only equaled by the "Dissonances" of the Court of Pleas, “where American Shopkeepers, French planters and Spanish clerks sit on the same bench ," listening to "American Attorneys, French procureurs and Castillian Abogados," each speaking his own language. [Quoted in George Dargo, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975), p. 112.]

Texas State Historical Association

The Handbook of Texas Online

Excerpt from article on LAW.. paragraph 3

http://www.tshaonline.org/handbook/online/articles/jzlph

In 1836 the Republic of Texas adopted the Anglo-American common law of crimes with jury trial. Those rules were the basis of the Penal Code of 1856, and criminal law has since been governed by statutes along with the safeguards of the United States and Texas constitutions. The nonstatutory, civil common law of Texas has been developed since the republic adopted "the common law of England as the rule of decision" in 1840. "Common law" was understood to include such matters as obligations arising by agreement (contracts) and those arising by injury (torts), as well as claims to property (lands as well as chattels), the status of citizens (such as marriage, divorce, welfare of children, corporations, and partnerships), and that body of legal doctrine embraced within the English concept of equity. Many of those rules have been put in an authoritative form by act of the legislature, while others have not. If codification has occurred, the legislative rules are interpreted by the courts and amplified by judicial decisions. Principles of law that are not codified are found in judicial decisions and learned writings. Only decisions of appellate courts designated to be published are looked to as sources of common law, and only about 20 percent of appellate decisions are so designated by the appellate courts deciding them.

http://www.texasslaveryproject.org/sources/TTR/display.php?f=TSP0065.xml

"Untitled," Telegraph and Texas Register, April 8, 1840

Summary: Printed the text of a new law passed by the Texas Congress. First, the law stated that English common law would henceforth reign in the territory and most of the laws passed before 1836 were now null and void. The rest of the law dealt with marriage rights. Interestingly, the new law gave women many rights to property both in and out of marriage, although husbands still had control of most of the property within marriage.

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An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.

SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.

SEC. 2 Be it further enacted, That all laws in force in this republic, prior to the first of September, one thousand eight hundred and thirty six (except the laws of the consultation and provisional government, now in force, and except such laws as relate exclusively to grants and the colonization of lands in the state of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the general and state governments) be, and the same are hereby repealed.

SEC. 3. Be it further enacted, That neither the lands nor slaves which the wife may own, or to which she may have any right, title or claim at the time of her marriage, nor the lands nor slaves to which she may acquire, during the coverture, any right title or claim, by gift, devise or descent, nor the increase of such slaves in each case, nor the paraphernalia as defined at common law, which the wife may have at the time of the marriage, or which she may acquire during the coverture as aforesaid, shall, by virtue of the marriage, become the property of the husband, but shall remain the separate property of the wife; Provided, however, that during the continuance of the marriage, the husband shall have the sole management of such lands and slaves.

SEC. 4. Be it further enacted, That all property which the husband or wife may bring into the marriage, except land and slaves and the wife's paraphernalia, and all the property acquired during the marriage, except such land or slaves, or their increase as may be acquired by either party, by gift, devise or descent, and except also the wife's paraphernalia, acquired as aforesaid, and during the time aforesaid, shall be the common property of the husband and wife, and during the coverture may be sold or otherwise disposed of by the husband only; it shall be first liable for all the debts contracted by the husband during the marriage, and for debts contracted by the wife for necessaries during the same time; and upon the dissolution of the marriage, by death, after the payment of all such debts, the remainder of such common property shall go to the survivor, if the deceased have no descendant or descendants; but if the deceased have a descendant or descendants, the survivor shall have one half of such common property, and the other half shall pass to the descendant or decendants of the deceased.

SEC. 5 Be it further enacted, That parties intending to enter into the marriage state, may enter into what stipulations they please, provided they be not contrary to good morals, or to some rule of law, and in no case shall they enter into any agreement, or make any renunciation, the object of which would be to alter the legal orders of descent either with respect to themselves in what concerns the inheritance of their children or posterity which either may have by any other person, or in respect to their common children--nor shall they make any valid agreement to impair the legal rights of the husband over the person of the wife, or the persons of their common children.

SEC. 6. Be it further enacted, That every matrimonial agreement must be made by an act before a notary public and two witnesses; the minor capable of contracting matrimony, may give his or her consent to any agreement which this contract is susceptible of; provided, such agreement be made by the written consent of both parents, if both be living; if not, by that of the survivor; if both be dead, then by the written consent of the minor's guardian.

SEC 7. Be it further enacted, That no matrimonial agreement shall be altered after the celebration of the marriage.

SEC. 8. Be it further enacted, That when the wife, by a marriage contract, may reserve to herself any property or rights to property (whether such rights be in esse[sic] or expectancy) for such reservation to be valid as to the subsequent purchasers or creditors of her husband, the said contract must be acknowledged by her husband or proved by at least one witness, and recorded in the clerk's office of the county court of the aounty[sic] in which said married parties may reside.

SEC. 9 Be it further enacted, That the husband may sue either alone or jointly with his wife, for the recovery of any effects of the wife, and in case he fail or neglect so to do, she may, by the authority of the court, sue for such effects in her name.

SEC. 10. Be it further enacted, That should the husband refuse or fail to support his wife, from the proceeds of the lands or slaves she may have, or fail to educate her children as the fortune of the wife would justify, she may in either case complain to the county court, who, upon satisfactory proof shall decree, that so much of such proceeds shall be paid to the wife for the support of herself and for the nurture and education of her children, as the court may deem necessary.

SEC. 11. Be it further enacted, That if, during the coverture, a sale of any of the lands or slaves of the wife be illegally effected, no limitation shall commence to run during the coverture; and should the wife survive the dissolution of the marriage, she may sue for and recover such property; should the wife survive the dissolution, but not the time allowed by the law of limitations, then the running of such law shall cease till all the children of the deceased mother shall have arrived at the age of majority, or those under that age shall have married, and the heirs of the wife shall have the unexpired time allowed by the law of limitations, within which to institute their suit for the recovery of said property; and if the wife shall not survive the dissolution of the marriage, the law of limitations shall not commence running, as to the children of the deceased mother, until all the children shall have arrived at the age of majority, or those under that age shall have married.

SEC. 12. Be it further enacted, That all the effects which both the husband and wife reciprocally possess at the time the marriage may be dissolved, shall be regarded as common effects or gains, unless the contrary be satisfactorily proved.

SEC 13. Be it further enacted, That marriages that may be entered into in this republic after the passage of this law, shall be governed by the provisions of the same. The marital rights of persons married in other countries, who may remove here after the passage of this act, shall, in regard to property acquired in this republic during the marriage, be regulated by the provisions of the same. The marital rights of persons married here before the passage of this act, or of persons married in another country, who removed here before its passage, shall be regulated by the law as it aforetime was

DAVID S. KAUFMAN,

Speaker of the House of Representatives.

DAVID G. BURNET,

President of the Senate.

Approved 20th January, 1840,

MIRABEAU B LAMAR.

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Source Copy Consulted: "Untitled," Telegraph and Texas Register, April 8, 1840, p. 1