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Cost and Fee-Shifting in Texas Adverse Possession Cases

There is little doubt that adverse possession lawsuits can be costly. Litigants to these title disputes -- where the key evidence is necessarily historical and often pre-dates current ownership of a given property -- frequently incur substantial expense in surveys, document searches, depositions of prior owners, expert witnesses and title searches. Naturally, a real estate lawyer's time associated with weaving or undermining a credible claim for ownership which is contrary to "legal title" as it appears in the deed records can also translate into significant attorneys' fees. Thus, property owners with boundary disputes often inquire about the possibility of recovering their costs and attorneys' fees in the event that the prevail in an adverse possession case.

For all its criticism, the Texas Legislature has generally been sensitive to the sanctity of land ownership in Texas. For that reason, it enacted Section 16.034(a) of the Texas Civil Practice and Remedies Code to allow the Court (in its discretion) to award costs and reasonable attorneys' fees to the prevailing party in a suit for the possession of real property where one party is "claiming under record title to the property and one claiming by adverse possession." TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, this grant of discretionary authority for trial courts to award fees didn't have much of an impact on the number of adverse possession suits, including those where claims of ownership by adverse possession were simply frivolous.

To address this concern, statutory revisions were made in 2009, and Section 16.034(a) now requires the trial court to award attorney’s fees “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, . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (Vernon Supp. 2009).

The issue of unlawful possession is still part and parcel of the availability of attorney’s fees under section 16.034(a). TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, under the statutory revisions, the presence of these elements, together with a finding of bad faith, frivolity and/or groundlessness will necessarily result in the shifting of costs and attorneys' fees.

When considering whether to litigate a trespass, title dispute or adverse possession claim, a landowner shouldn't count on having the opposing party pay his or her attorneys' fees. However, given the 2009 revisions to Section 16.034(a), the frequency of such recovery in those cases involving groundless claims of adverse possession seem much better.

Recovery of Attorney's Fees in Adverse Possession Cases

There is little doubt that adverse possession lawsuits can be costly. Litigants to these title disputes -- where the key evidence is necessarily historical and often pre-dates current ownership of a given property -- frequently incur substantial expense in surveys, document searches, depositions of prior owners, expert witnesses and title searches. Naturally, a real estate lawyer's time associated with weaving or undermining a credible claim for ownership which is contrary to "legal title" as it appears in the deed records can also translate into significant attorneys' fees. Thus, property owners with boundary disputes often inquire about the possibility of recovering their costs and attorneys' fees in the event that the prevail in an adverse possession case.

For all its criticism, the Texas Legislature has generally been sensitive to the sanctity of land ownership in Texas. For that reason, it enacted Section 16.034(a) of the Texas Civil Practice and Remedies Code to allow the Court (in its discretion) to award costs and reasonable attorneys' fees to the prevailing party in a suit for the possession of real property where one party is "claiming under record title to the property and one claiming by adverse possession." TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, this grant of discretionary authority for trial courts to award fees didn't have much of an impact on the number of adverse possession suits, including those where claims of ownership by adverse possession were simply frivolous.

To address this concern, statutory revisions were made in 2009, and Section 16.034(a) now requires the trial court to award attorney’s fees “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, . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (Vernon Supp. 2009).

The issue of unlawful possession is still part and parcel of the availability of attorney’s fees under section 16.034(a). TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, under the statutory revisions, the presence of these elements, together with a finding of bad faith, frivolity and/or groundlessness will necessarily result in the shifting of costs and attorneys' fees.

When considering whether to litigate a trespass, title dispute or adverse possession claim, a landowner shouldn't count on having the opposing party pay his or her attorneys' fees. However, given the 2009 revisions to Section 16.034(a), the frequency of such recovery in those cases involving groundless claims of adverse possession seem much better.

City Appeal Fails to Overturn Order Blocking Apartment Demolition

On August 18, the Fourth Court of Appeals upheld a Bexar County trial court's issuance of a temporary injunction preventing the City of San Antonio (COSA) from demolishing an apartment complex undergoing renovations.

COSA appealed the issuance of the injunction, and the trial court's denial of its plea to the jurisdiction on grounds that the Plaintiff -- a bank who had provided over a half-million dollars in financing for the apartment's new owner's purchase and renovation efforts -- lacked standing to challenge the planned demolition. In essence, COSA asserted that the Bank, as a mere lender and not owner of the complex, lacked sufficient interest in the property to challenge the City's previously-issued demolition order.

In an opinion authored by Chief Justice Catherine Stone, the San Antonio Appellate Court found that the bank -- as an innocent lender -- maintained standing under the Warranty Deed and Deed of Trust to seek Court declarations of its rights (vis-a-vis the City) under those documents. The Fourth Court also determined that because COSA failed to file a copy of the demolition order in the Official Public Records of Real Property, notice of the impending demolition was not imputed to the bank, and the injunction preventing demolition was proper.

Based on the foregoing, the trial court's injunction order was affirmed.

City Loses Appeal in Bid to Demolish Apartment Complex

On August 18, the Fourth Court of Appeals upheld a Bexar County trial court's issuance of a temporary injunction preventing the City of San Antonio (COSA) from demolishing an apartment complex undergoing renovations.

COSA appealed the issuance of the injunction, and the trial court's denial of its plea to the jurisdiction on grounds that the Plaintiff -- a bank who had provided over a half-million dollars in financing for the apartment's new owner's purchase and renovation efforts -- lacked standing to challenge the planned demolition. In essence, COSA asserted that the Bank, as a mere lender and not owner of the complex, lacked sufficient interest in the property to challenge the City's previously-issued demolition order.

In an opinion authored by Chief Justice Catherine Stone, the San Antonio Appellate Court found that the bank -- as an innocent lender -- maintained standing under the Warranty Deed and Deed of Trust to seek Court declarations of its rights (vis-a-vis the City) under those documents. The Fourth Court also determined that because COSA failed to file a copy of the demolition order in the Official Public Records of Real Property, notice of the impending demolition was not imputed to the bank, and the injunction preventing demolition was proper.

Based on the foregoing, the trial court's injunction order was affirmed.

Help us get to our goal!

We have joined the Alamo Crossfit team for a worthy cause. Fight Gone Bad 5. This year, we want to raise over $20,000 for our wounded warriors. Let's make every sacrifice that our soldiers made for us worth something.

Every year, soldiers are asked to make the ultimate sacrifice and they do it without thinking about it, so that we can enjoy the freedoms that we do.

Now, its time we give back something to them.

Please, help us help them live a better life. Thanks.

DONATE HERE.

Ex-Judge Samuel Kent Wants Out of Jail: It's Been a Cruel and Abusive Experience. Surprise.

We've posted about Samuel Kent before -- following his path from a setting federal district judge in Galveston, Texas indicted for sex crimes, through his incarceration after he entered into a plea agreement (he was also the subject of impeachment, but that's a rabbit trail at this point). 

He's always been rather creative and surprising in his legal strategies -- remember when he resigned one year in advance, in a fight to keep his pension?  -- and this week's filing is no different. 

Former Federal Judge Kent Finds Life Behind Bars "Cruel" so He Files Motion for Release

This week, Samuel Kent has filed a former request that his sentence be vacated and corrected. Why? Kent argues that the Bureau of Prisons has allegedly ignored the "intended sentence," entered in May 2009 by (1) denying him admission into the substance abuse program (for the reason that Kent had been sober for a full year before he was arrested); and (2) classifying Kent as a "sex offender" because the prosecution dismissed the sex allegation charges against him. Among other things.

While an inmate in a Florida facility, former judge Samuel Kent provides such facts to support his request as (1) he has suffered from listening to another inmate as the inmate was being raped; and (2) he was forced by a Florida prison official (a "sargeant") to do calisthenics in the nude. 

There's lots more.  Suffice to say, ex-Judge Kent's filing has a lot more juice to it than anything Lindsay Lohen has filed in the past six months. 

Read the details for yourself in the Memorandum filed in concurrance with the Motion yesterday.

Need a criminal lawyers, come see us!

When you are faced with the possibilities of facing the law, do not do it alone. We are here to help you. Our San Antonio lawyers have been helping the wrongfully accused throughout Texas. We strive to provide you, our client, with legal representation that is honest, effective and affordable.

Our motto says it best "we care about your legal needs." The DA is the biggest law firm with the most resources to their disposal. Do not let the biggest law firm in Bexar County convict you without a fight. You need The Baez Law Firm on your side.

You are always presumed to be innocent, unless proven guilty. In Texas, that is not the case. Many juries already have the notion that, because you were charged, jailed and now tried that you "must be guilty;" however, that is not the case. That is what the DA will attempt to do. Do not let them.

You are not guilty because you were arrested. You are guilty when you commit a crime and you are found guilty of it, Period! We do not represent criminal, we represent the wrongfully accused. Give us a call (210) 979-9777.