CHAPTER 257 SUIT TO QUIET TITLE SCOPE This chapter discusses the equitable remedy of quieting title to property through a suit to “remove a cloud,” meaning an adverse claim of right or interest in the property. The chapter describes the action to quiet title, details the elements that must be pleaded and proved, and distinguishes the remedy from others that may have the same effect. Included is a discussion of the application of the Declaratory Judgments Act as an appropriate procedural vehicle with which to assert the action. The chapter also covers the tort cause of action known as slander of title, an action often included with a quiet ttle suit when the cloud on the plaintifi’s title has frustrated a specific sale and caused the plaintiff to suffer a monetary loss. A step-by-step guide to planning and preparing the case is included for petitioners, as are forms for a petition to quict title, for adding a slander of title action, and for use in drafting and recording the judgment quieting title. ‘A guide and forms for use by the defense are also illustrated, setting out typical defenses for both causes of action. The equitable remedies available to rescind or reform an instrument executed by the petitioner, remedies that may have the effect of quieting ttle by nullifying or correcting a title document, are addressed in Ch. 52, Rescission, and Ch. 53, Reformation. Actions to vest title and the right of possession in the plaintiff, which effectively quiet title, are covered in Ch. 251, Trespass to Try Title, and Ch. 250, Adoerse Possession. The substantive law governing the validity of claims to real property interests often targeted as invalid clouds on a property title is discussed in Ch. 250, Adoerse Possession, Ch. 254, Deeds and Conveyances, Ch. 255, Real Property Security Interests, Ch. 271, Mechanic’s and Materialmen’s Liens, Ch. 280, Adjoining Landowners, Ch. 281, Easements, and Ch, 283, Oil and Gas Leases. (atew Bene Ca ne) as-11N0 mATI9) 257-1§ 257.01[3}[b] Sur 10 Qur Ts 257-10 another party asserting a conflicting possessory right [see Ch. 251, Trespass to Try Title). In essence, the plaintiff must claim an ownership interest in real property and can prevail only by establishing that interest as a valid and superior one. An action in trespass to try ttle is purely statutory [Tex. Prop. Code § 22.001-22.004; see Martin y, Amerman, 133 S.W.3d 262, 264-265 (Tex. 2004) (noting that statutory trespass-to-try-title action replaced common-law action in ejectment)] and is governed by special pleading and proof requirements established by the ‘Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809; see generally Ch. 251, Trespass to Try Title]. Success in a trespass-to-try-title action depends on the strength of the petitioner's title, not the weakness of the adversary's claim [Martin vy. Amerman, 133 S.W.3d 262, 265 (Tex. 2004); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964); Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961)]. ‘When both the plaintiff and the defendant claim title and possession of property, it appears that the plaintiff may elect to bring a suit to quiet title or remove a cloud created by the deed or other evidence of the defendant's claim (see, e.g. Dickson v. Dickson, 993 $.W.2d 735, 736 (Tex. App. —Houston [14th Dist.] 1999, no pet.) (Gevisee under will attempted suit to quiet title to defeat defendant's claim of parol gift and adverse possession)]. The major drawback in bringing suit to quiet title is that the resulting judgment would not directly affirm the plaintiff's claim to title. Rather, it would only eliminate the defendant’s claim, leaving the validity of the plaintiff's title dependent on the usual examination of remaining public records. Moreover, no money damages are recoverable in a suit to quiet title [Ellis v. Waldrop, 656 S.W.2d 902, 904-905 (Tex. 1983) (damages depend on successful prosecution of action for slander of title); see § 257.06[2]]. On the other hand, a petitioner who establishes superior title in a trespass to try title action may recover for loss of rents and profits and other damages to compensate for any harm to the property caused by the defendant's presence [Tex. R. Civ. P. 783(f); see Ch. 251, Trespass to Try Title). Often, the claim of one of the parties is based on title by limitation, also known as adverse possession [see Ch. 250, Adverse Possession]. In a trespass-to-try-title action in which a claim or defense of adverse possession is in issue, recovery of attorney's fees by the prevailing party is authorized when certain notice procedures have been followed [see Tex. Civ. Prac. & Rem. Code § 16.034]. If this attorney's fee statute is inapplicable because there is no claim or defense of adverse possession [see Smith v. Brooks, 825 S.W.2d 208, 210-211 (Tex. App.—Texarkana 1992, no writ) (mere plea of “not guilty” does not raise defense of adverse possession, so fee statute inapplicable)], there must be some other statutory basis for an award of attomey's fees. The statutes governing trespass- to-try-title actions do not themselves provide any general authorization for attomey’s fees [see generally Ch. 251, Trespass to Try Title]. Therefore, when an action must be brought as a trespass-to-try-title action [see Tex. Prop. Code § 22.001(a) (trespass-to-try-title action is “the method of determining title” to real at sina nanis)Surr To Quer True 257-2 ‘Synopsis PART I. LEGAL BACKGROUND ‘A. Action to Remove Cloud and Quiet Title [Nature and Purpose of Action to Remove Cloud and Quiet Title $ 257.01 #25702 § 25703, § 287.04 § 257.05 § 257.06 a B) a oy Cause of Action Explained Typical Targets of Suit to Quiet Tite Other Actions to Clear Title Distinguished [a] Importance of Making Distinction [b] Trespass to Try Title [ec] Rescisston [a] Reformation [el Slander of Title Using Declaratory Judgments Act for Action to Quiet Title [0] Interpretation of Declaratory Judgment Act [b] Effect of Availability of Other Remedy on Award of Attorney's Fees Elements of Cause of Action to Quiet Title 0) a Generally Stated ‘Specific Elements [a] Petitioner's Interest in Specific Property [Tb] Existence of Adverse Claim [c} Invalidity or Unenforceability of Adverse Claim Parties a) 2 Plaintiffs Defendants Jurisdiction and Venue a a Jurisdiction [a] Power to Adjudicate Title to Texas Real Estate {b] Subject Matter Jurisdiction Venue Defensive Matters a a 8) a Limitations ‘Other Affirmative Defenses Request for Award of Attorney's Fees for Successful Defense Counterclaim for Affirmative Rellet [a] Quieting or Vesting of Title in Defendant [b] Claim for Improvements Disclaimer Relief Available a a Declaration Removing Cloud and Quieting Tite Damages Not Recoverable for Mere Suit to Quiet Tile