Distinctions in RP

Question 1

What are ambiguous conveyances presumed to be in TX? I.e. what present possessory estate requires no words of limitation?

Answer 1

FSA - Fee Simple Absolute.

Question 2

When dealing with a fee simple on condition subsequent estate, what is the Texas twist?

Answer 2

The Grantor’s right of entry is freely transferable.

This is contrary both to the common law, and to the majority of modern jurisdictions.

Question 3

Texas is a community property state, what does this mean in terms of Life Estates by Marital Right?

Answer 3

It means that TX recognizes neither dower or curtesy; thus, (a) H’s Cs can defeat W’s dower rights (bc she has none) and (b) a conveyance by H to a GFBFP4V defeats dower even without W joining in on the conveyance (bc there is no dower).

Question 4

Regarding Life Estates, if a will is ambiguous and there are children of T, then what will the court do?

Answer 4

Give the surviving parent an LE and make the offspring remaindermen.

Question 5

How has TX statutorily reformed RAP?

Additionally, what interest did the TX Supreme Court recently declare was subject to the RAP in addition to the 5 traditional interests?

Answer 5

TX adopted the cy pres approach, borrowed from Trusts law, under which any interest in RP or PP that would o/wise violate RAP will be reformed or construed within the limits of RAP to give effect to the general intent of the grantor whenever that interest can be ascertained. This modification of RAP only works for inter vivos instruments and wills.

The 6 types of RAP interests are:

1) Contingent Remainders
2) Executory Interests
3) VRSTO/Class gifts
4) Options/Rts of first refusal
5) Powers of Appointment
6) Non-possessory royalty interests (NPRIs)*

Question 6

CL defaults to a JT being a JTw/Survivorship rts; TX defects from this how? What is the default concurrent ownership estate?
How does one achieve a JT w/Survivorship in TX?
What scenario requires even stricter statutory compliance to create a JT w/Survivorship in TX?

What is the final other distinctive feature of TX RP law in terms of concurrent estates?

Answer 6

By default in TX, the concurrent-ownership estate is simply a TinC situation, as the TX Trust Code abolished the CL JT w/Survivorship scheme.
However, via the use of very clear language (i.e. language that explicitly uses the words “survivorship” and “right”), JT w/Survivorship can be created through K.
Additionally, this situation is far further complicated by the scenario of Husband & Wife, due to the CP statutory scheme, which layers on additional statutory requirements and restrictions.
Finally, TbEs (tenancy by the entirety) an estate that existed at CL is unknown and not recognized in any way in TX bc of statutory CP laws.

Question 7

In terms of future-interest RP law in TX, what are the 3 distinctive features of:
A) A Poss. of Reverter
B) A Right of Re-rentry

Answer 7

A) PoR = No RAP, No duration, No re-record req

B) RoR = Transferable, No duration, No RAP.

Question 8

In TX, when does RAP apply to charitable trusts?

Answer 8

RAP does not apply to charitable trusts; when a noncharitable gift or
trust violates RAP, the court may reform the interest to validate it consistently with the
creator’s intent

Question 9

What is the maximum number of years that a Tenancy-for-Years lease may be in TX?

Answer 9

TX does not restrict the number of years for which a leasehold estate may be created.

Question 10

How long does a tenancy at will last in TX?

Answer 10

As long as both L & T desire

Question 11

How much advanced notice is required to terminate a tenancy at will in TX?

Answer 11

None (different from a majority of states, aligned w/CL)

Question 12

How much advanced notice is required to evict a tenant in a tenancy at will situation?

Answer 12

3-days written notice is required to evict T in all situations (including the Tenancy at will situation)

Question 13

List all issues that a forcible detainer suit determines in TX. Further, When may a landlord file a forcible detainer suit in TX?

Answer 13

Only issue - who is entitled to possess the property

L must provide a hold-over tenant w/3-days written notice to vacate before FILING suit.

Question 14

Where does a landlord file a forcible detainer suit?

Answer 14

In the justice court of the precinct where the property is located.

Question 15

May a landlord recover attorney’s fees in a forcible detainer suit in TX? If so, how?

Answer 15

Yes, but only if:
I) L gives hold-over T written demand to vacate
II) timing = sent demand least 10-days prior to filing suit
III) method = sent demand via registered or certified mail w/return receipt requested
IV) content: “if you do not vacate before the 11th day after receipt of this notice, I may recover fees if a suit is filed.”

Question 16

Are there any circumstances in which a forcible detainer suit may be joined with other actions?

Answer 16

Yes, if:
I) Damages, Waste, rent-related action(s); and,
II) In total, jurisdictional limits of the justice court isn’t exceeded.

Question 17

Tenant is willfully and maliciously holding over against Landlord. When may Landlord begin to collect double rent?

Answer 17

Never, TX statutes don’t provide for collection of double rent from a hold-over T under any circumstances.

Question 18

Who has the duty of repair in TX, the landlord or the tenant?

Answer 18

The tenant, pursuant to the doctrine of waste, has the duty to keep the premises in good repair, unless the lease provides otherwise.

Question 19

When does the period of repair for a condition on the premises resulting from an insured casualty loss (e.g., fire, smoke, hail, explosion) begin?

Answer 19

When the landlord actually receives the insurance proceeds, until then, no duty to repair (by L).

Question 20

Under what conditions may a lease be terminated based on destruction of premises?

Answer 20

I) Totally untenable premises (i.e. total destruction)
II) W/o fault, i.e. negligence, of Tenant
III) Tenant or landlord via written notice
IV) given any time prior to completion of repairs
V) T is automatically entitled to a pro rata refund of both (i) pro-rata-rent refund (from moveout date) + (ii) security-deposit refund (if any).

Question 21

What happens if there is partial destruction of the premises in TX, w/respect to landlord/tenant rights and obligations?

Answer 21

If partially untenable & w/o T-negligence, then:
A) look for an express agreement in the lease,
B) if none, then T is entitled to rent reduction to extent of unusable premises (assuming unusability cause = casualty and not some external event),
C) T may only seek this rent-reducing entitlement from a COUNTY or DISTRICT court (which makes complete sense because a forcible-detainer suit may only be brought in a justice court).

Question 22

Under what 2 circumstances may Landlord deduct from T’s security/rent deposit any damages and charges?
What else is required for L to deduct from T’s security rent deposit under either of these circumstances?
Are there any exceptions to any of these requirements?

Answer 22

Ia) Those for which Tenant is liable under the lease
Ib) Those that result from Tenant’s breach of the lease
II) Return the balance to T
III) Not retain any amount for ordinary wear & tear
IV) Provide written description of all deductions*
V) Provide itemized list of all deductions*
*Only required if T doesn’t owe rent at surrendering OR if there is a controversy re: amount of rent T owes.

Question 23

By when must Landlord: a) provide the listed/described itemized deductions or b) return the security deposit to:
-Commercial Tenant?
-Residential Tenant?
What if Landlord doesn’t take action by the deadline?
Is there any excuse Landlord could offer that would excuse performance by the applicable deadline?

Answer 23

Commercial T–Within 60-days post-T surrendering poss.
Residential T–Within 30-days post-T surrendering poss.
Missing deadline–Presumption of bad faith.
Only excuse–T did NOT provide a WRITTEN statement of T’s forwarding address.

Question 24

What action may L take if a commercial T is on the premises but fails to pay rent that is a Texas specific remedy?
What are the 4 requirements for this to be proper?
What are the 2 benefits of taking this action in the commercial-lease context that don’t exist in the residential-lease context?

Answer 24

Changing the locks.
4 Requirements:
1) Written notice
2) Placed on T’s front door
3) Name & Address or Phone # to get new key
4) Delinquent in paying rent
2 Benefits:
i) Key need only be available during T’s regular biz hours (NOT L’s or holder’s regular biz hours)
ii) Only need be made available upon T’s payment of the delinquent rent.

Question 25

What is meant by an “improper lockout”?
What are a commercial T’s remedies for an improper lockout?
What is the amount of damages that T will in fact recover (label as “Net Recovery”)?

Answer 25

Improper Lockout = One in which L didn’t abide y the proper statutory requirements (NOT limited to only one in which T was in-fact paying rent, e.g., mailing T notice rather than placing it on T’s front door = Improper lockout)

Remedies (Cumulative):
i) Recover Possession OR Terminate Lease
iia) Actual damages, b) 1-month’s rent, OR c) $500
iii) Reasonably atty fees
iv) Court costs
= “Gross Recovery”
(Gross Recovery) - (Delinquent rents) - (other sums for which T is liable to L) = Net Recovery.

Question 26

What action may L take if a residential-T is on the premises but fails to pay rent that is a Texas specific remedy?
What are the 10 requirements for this to be proper?
What 2 related actions may Landlord not take UNDER ANY CIRCUMSTANCES?

Answer 26

Changing the locks. Requirements:
I) Expressly provided for in lease
II) T is delinquent in paying all OR PART of the rent
III) At least three days prior to lock-changing (not including day of lock-changing)
IV) L must provide T w/a notice that has the following
V) Earliest date on which L proposes to lock change
VI) Amount of rent T must pay to prevent lock change
VIIa) Name & Address of entity at which delinquent rent pay may be discussed or paid
***Unlike Comm-Tenant, NO PHONE # OPTION.
VIII) Said entity MUST be available during LANDLORD’s normal business hours (Comm-T = T’s normal biz hrs)
IX) Underlined/Bold Print the final requirement:
X) “You have the right to receive a new key at any hour, regardless of whether You pay the delinquent rent” (need not be the exact quote, but the exact quote will ALWAYS suffice)

L may NEVER:

a) Change locks in the common areas; or,
b) Take any other action that prevents ANY tenant from entering the common areas.

Question 27

What is meant by an “improper lockout”?
What are the remedies available to residential T for IL?
What damages will T in fact recover (label as “Net Recovery”)?

Answer 27

Improper lockout = Not STRICTLY following ALL 10 of the statutory requirements for lockout (NOT just that T was in fact current on rent payment, e.g., forgot to underline or bold the right to new key, any hour, regardless of pay statement, then lockout = improper)

Remedies (Cumulative):

i) Recover Possession OR terminate lease
ii) One month’s rent
iii) $1000
iv) Actual damages
v) Reasonable atty’s fees
vi) Court Costs

(i-vi) = Gross

(Gross-$) - (delinquent rent) - (other sums for which T is liable to L) = Net Recovery

Question 28

What statutory lien(s) are applicable in the Landlord-Tenant context that specifically arise purely by existence of the Landlord-Tenant relationship?

What are the 5 distinctive features of this lien?

What are the 3 requirements for Landlord to enforce this lien?
Under what specific circumstance are three additional requirements (i.e. 6 reqs total) imposed?
What are those 3 additional requirements?

Answer 28

Only one–“Preference lien”. Features of lien:
I) Commercial lease (NO res-T alt; unlike lock change)
II) Attachment = automatic
III) Collateral = any of T’s property “on the premises” OR b) any property of ANY SUB-TENANT’s property “on the premises”
IV) Duration = Lease start date through ONE MONTH AFTER ToEffectiveAbandonment by T.
V) Obligation-Amt = All rent already due AND all rent that will become due during the balance of the 12-month period that begins on the lease start state.

Requirements for L to enforce a “preference lien”:
I) Apply for a DISTRESS WARRANT based on:
IIa) T currently owes rent,
IIb) T is “ABOUT to abandon the building,”
IIc) T is “ABOUT to remove T’s own prop from the building,”
III) as of the ToApplication.
*Only if enforcing lien against rent that is >6mo overdue, then L must also,
IV) File a verified lien statement
V) with the county clerk
VI) in the county in which the leased premises are located.

Question 29

Must Landlord mitigate damages upon Tenant’s abandonment in the commercial lease context?
In the residential context?
What are the 8 requirements to validly waive this duty to mitigate in the lease?

Answer 29

Yes to both, TX now follows Mjxs; thus if T abandons the premises in violation of the lease, L must mitigate damages.
I’m just fucking with you, future me, you can’t waive this duty to mitigate under ANY CIRCUMSTANCES. L’s gotta mitigate, ALWAYS.

Question 30

What kind of notice required to end any periodic tenancy in Texas? When must it be given? What effect does this have on the amount of rent due in the final period?

Answer 30

1) Any periodic tenancy requires 30-days notice by stat.
2) It may be given at any time during a period, i.e. it need not be given so that it will end on a period ending date.
3) To better enable mid-period termination, the statute explicitly authorizes that rent for any period may be prorated (e.g., monthly rent gets divided by 30 days) rent for the post-notice 30-days (e.g., notice on April 15, month to mont, rent due for the month on the first @ $500/month = move out by May 15, pay $750 ($500 for April & $250 prorated for may).

Question 31

Is Texas a lien theory or title theory state?

What effect does this have on JTw/Survivorship?

Answer 31

1) Lien theory (like MJx)–No severance, the rationale is that when a mortgage is executed a lien merely attaches to the tile but does NOT transfer title, therefore the 4 unities (title, time, interest, & possession) are not disturbed and the survivorship right holds.

Question 32

The MJxs have statutes providing for double rent where the tenant willfully holds over after L has made a written demand for possession. What position does Texas take?

Answer 32

Opposite–Stat: NO double rent for willful holdover. EVER.
EXCEPTION–If Lease agreement expressly provides for a higher or double rent in the event of a holdover, such a provision will be enforced.

Question 33

1. What are the two TX statutes that provide both residential and commercial landlords with a quick and inexpensive judicial process to evict Tenants wrongfully in possession?
2. In what court should either statutory CoA be brought?
3. What is required before the landlord may utilize either statute?
4. Is there any exception to the requirement enumerated in (3)?
5. What is the most common period of landlord-notice that is provided AND ACCEPTED in Texas courts, both in commercial and residential leases?

Answer 33

1. Forcible Entry; Forcible Entry & Detainer.
2. JP courts have jurisdiction for these proceedings.
3. At least 3-days notice to vacate.
4. Yes, where the lease agreement provides for a longer/shorter notice-to-vacate period.
5. Shortest, most-commonly found in commercial and residential leases, and allowed by TX-courts = 24-hours

Question 34

What is unique about Texas’s Covenant of Quiet Enjoyment?

What are two most common uses for a tenant to invoke the CoQE in Texas?

Answer 34

It does not apply to any PHYSICAL repair issues, because the statutory warranty superseded such the common-law CoQE’s coverage.

However, CoQE does still provide remedy for non-physical repair issues in TX, most commonly:

a) Noisy neighbors
b) Criminal activity by co-tenants.

Question 35

1. What does Texas’s Statutory Warranty of Habitability supersede in terms of the common law?
2. What does it require landlords to do?
3. Is TX’s SWH waivable? If so, then 10 reqs? VIA CC BUCKO
4. Assuming no valid waiver, then what is the one thing that Tenant must do before seeking any remedy under TX’s SWH? Are there any sub-requirements to discharging this singular duty? ACTIN
5. What are T’s 3 alternative remedies under the statute?
6. How does a commercial T invoke the SWH?
7. What is the biggest difference b/t a commercial T’s Statutory Implied Warranty of Suitability & a residential T’s SWH?
8. What does the commercial T’s SIWS most closely resemble?

Answer 35

1. IWH AND CoQE (physical repair issues)
2. Landlords must make repairs to conditions that:
   I) Materially affect II) Health & Safety III) Ordinary T.
3. Rarely. Reqs = VIA CC BUCKO:
   –Voluntarily executed waiver provision
   –In-writing lease
   –Actual notice of problems that would occur mid-lease, extension, or renewal = X.
   –Constructive notice (i.e. s/h/k) of problems…
   –Clearly visible waiver provision
   –Beginning of the leasehold = No need for repair
   –Underlined/bold-type waiver provison
   –Consideration received by T for executing waiver
   –Knowingly executed the waiver provision
   –Only one rental property is owned by L
   –>All 10 = T is required to make/pay for all repairs
4. T MUST PROVIDE NOTICE! Sub-reqs (ACTIN):
   –Any mail service allowing delivery tracking, e.g., certified mail return receipt requested; regist. mail.
   –Current in payment of rent (o/wise no duty)
   –Time to repair/respond must be given to L (“reasonable time”)
   –In writing
   –Normal-rent-payment location = delivery-of-notice location.
5. Any of the following:
   –Terminate lease & obtain all judicial remedies
   –Stay & sue for judicial remedies (include damages & an order mandating that L make the repairs)
   –Repair & deduct: Allows T under limmited circumstances to make repairs and deduct the cost from the next month’s rent (assuming specific provisions are followed).
6. Commercial T’s can’t invoke the SWH or an IWH; they are relegated to ONLY the implied warranty of sustainability.
7. SIWS is waivable much more easily (e.g., “as is”).
8. SIWS is effectively the common-law IWH.

Question 36

What is retaliatory eviction?
Is it recognized in a MJxs? Texas?
What benefit is afforded to the Tenant in a retaliatory eviction case?

Answer 36

T may exercise the following legal rights:

1) Report housing/building code violations to L or government agency
2) T becomes involved in a Tenant’s Organization
3) T exercises any other legal right against L

and L can’t do any of the following in response:
A) Terminate T’s lease
B) Raise rent
C) Reduce available services

About 50% of states recognize and protect against retaliatory evictions, Texas INCLUDED.

If the landlord’s prohibited action, e.g., termination/raise rents/reduce services, is taken by L within 6 months (i.e. 180-days in TX) of T recognizing T’s rights, then L is PRESUMED to be retaliating and L has the BOP to show a valid, non-retaliatory reason for L’s actions.

Question 37

What is unique about Texas’s assignment and subletting rights of a Tenant in a lease as compared to the MBE?

Answer 37

MBE = Presume that T can assign or sublet unless lease states otherwise.
Texas = Statutory restriction, T may assign/sublet ONLY if L affirmatively gives permission (o/wise right to assign/sublet is non-existent).

Question 38

What do MJxs limit the $-Amt of a security deposit to?

What does TX limit the $-Amt of a security deposit to?

Answer 38

MJxs = One month's rent
TX = No $-Amt on a security deposit (and Ls are NOT required to pay any interest on the deposits that are held).

Question 39

In TX, if an implied easement by prior use is implicitly RESERVED, then the use must be . . .?
By contrast, in TX, if an implied easement by prior use is implicitly GRANTED, then . . . ?
Does TX follow the MJx or mJx approach in this matter?

Answer 39

Implicit reservation = use must be strictly necessary for continued enjoyment of the now dominant estate.

Implicit grant = use must be reasonably necessary for continued enjoyment of the now dominant estate.

This is a minority approach, MJxs = reasonably necessary whether by implicit grant or implicit reservation.

Question 40

What easements are available in TX for owners of landlocked property? Hamrick v. Ward

Answer 40

As of Hamrick v. Ward (TXSC), only the implied easement by necessity is available to access the landlocked parcel. The TXSC explicitly held that an otherwise available implied easement by prior use is NOT available for landlocked property.

Question 41

What is the time period for a prescriptive easement on the MBE (by default)?
And what about in Texas?

Answer 41

MBE = 20-years (unless told otherwise in problem)

Texas = 10-years to gain a prescriptive easement.

Question 42

When can easements in gross be transferred on the MBE?

And in Texas?

Answer 42

MBE = When the easement-in-gross is commercial.
Texas = Only 2 instances (commercial/personal = irrelev)
–a) If the language of the easement in gross expressly allows for alienation; or,
–b) if the easement is a Conservation easement in gross, then it is automatically transferable because the organic statute explicitly allows for alienation.

Question 43

What is an irrevocable license known as on the MBE?

What is an irrevocable license known as in TX?

Answer 43

MBE = License coupled w/an interest/consideration.
TX = "Easement by estoppel"

Question 44

What are the 5 statutes for Adverse Possession in TX?

Answer 44

1) Title or Color of Title statute: Possessor is there under a color of title and has only narrow, specified defects in title–3-years (Very unlikely to satisfy this test)
2) Duly Registered Deed & Payment of Taxes: Possessor is there under a RECORDED deed that is otherwise defective, but pays ALL taxes–5-years
3) Bare Possession: Possessor is just in bare possession of property w/o color of title (i.e. naked trespasser) and possession is limited to 160 acres (or more if: fenced-in area > 160-acres).
3.5) Bare Possession but w/super-defective deed: Possessor has a “deed” that doesn’t satisfy either the 3 or 5-year requirements (e.g., Possessor doesn’t pay taxes)–10 years (BUT get all property, even if >160-acres, and without any fencing).
4-5) Stealing from the disabled: True owner is under a legal disability (including military service) (technically 2 statutes operate in conjunction to create this catch all)

Question 45

What is unique about the intent aspect of an adverse possessor in Texas?

Answer 45

Unlike the MBE where AP’s intent = irrelevant, in Texas, AP must “intend to appropriate the land as one’s own,” meaning that if AP’s state of mind is that: “I wasn’t trying to get anything that wasn’t mine,” then AP’s adverse-possession claim FAILS.

Question 46

What is unique about Texas’s part-performance exception to the statute-of-frauds requirement of a writing in land-sale contracts?

Answer 46

MJxs–oral land-K = enforceable w/(2/3) of:

1) Possession of the land by purchaser
2) Paying all/part of the purchase price (e.g., down pay)
3) Erecting improvements on the property
* TX requires ALL 3; OTHERWISE, oral land-K = X*

Question 47

What is the legal effect of a valid land-sale contract during the executory period (i.e. period b/t land-sale K & ToClosing) in terms of risk-of-loss allocation on the MBE? In Texas? Why the different result in Texas?

Answer 47

MBE–If property is damaged/destroyed pre-closing, buyer loses bc once the K is signed, it is the buyer’s land and the buyer bears the risk bc of equitable conversion (i.e. the tile is in the buyer for all practical purposes); hence, even if S remains in possession & control the B bears the entire risk of loss.

Texas–ROL = Whoever is in POSSESSION at the time of the loss (be it Buyer or Seller) bears the ROL.
–>Reasoning: TX by statute has adopted the Uniform Vendor & Purchaser Risk Act (UVPRA)

Question 48

What is unique about Seller disclosures to a Buyer before execution of a land-sale K?

Answer 48

By statute, Texas provides a Seller’s disclosure FORM that must be completed honestly by S and provided to B BEFORE entering into the sales K for RESIDENTIAL property. However, certain limited exceptions exist for:

• -E1) Foreclosure sales
• -E2) Property resold after foreclosure by the bank
• -E3) Sales between co-owners.

Question 49

What may an owner of RP use in TX to designate a Transferee to receive title to property on O’s death without the necessity of probate, which is also a relatively new statutory invention in the state?

What effect does this instrument have on O’s rights upon execution? What powers does O retain upon execution?

What is not required (is required) for this instrument that is apposite from other, traditional instruments of this kind?

Answer 49

Transfer on Death Deed
No effect on O’s rights (i.e. the transferor), and O retains the power to transfer/encumber/revoke at any time.
Not required: Delivery; Absolute req: Recordation

Note: This is NOT a will document; yet, it is NOT effective until death. Purely contradictory of all CL & purely a creation of the state legislature.

Question 50

What words in a Texas deed will automatically create and include implicit covenants? What are they?
What does it mean that these covenants are “present” rather than “future” covenants?

Answer 50

Either: a) “Grants” or b) “Conveys”
1. Covenant against Encumbrances
2. Covenant of “no prior conveyances”
Present Covenants = Allow Grantee to sue immediately, are personal to the grantee, and do NOT run with the land.

Question 51

What is the doctrine of “estoppel by deed”?

What is this doctrine known as in TX?

Answer 51

Estoppel by Deed: A deed property to B that A doesn’t own, A then acquires title to the property purportedly deeded to B. Result = B gets title because A gave an implied covenant that title would be transferred to grantee. Exception = A transfers to C (a GFBFP4V) post-title acquisition, but still deed same property to B pre-acquisition, then result = C wins & B cannot rely on estoppel by deed.

In Texas, the concept, result, and exception are all the exact same; however, the doctrine is known as the doctrine of After-Acquired Title.

Question 52

On the MBE, are subsequent mortgagees protected by recording acts? Judgment creditors?
What about in Texas?

Answer 52

MBE–Only mortgagees may use the recording act to prevail over “first in time, first in right” claimant (no safe haven for judgment creditors).
Texas–BOTH GFBFP4Vs (i.e. mortgagees) AND GF-Creditors (e.g., judgment Cs) may use the statute to win over the first in time, first in right claimant.

Question 53

How is a deed properly recorded in TX?

Answer 53

I) Deed must be signed
IIa) Signature = Notarized (acknowledgement)
IIb) Signature + Signatures of 2+ witnesses (i.e. @L3)

Question 54

Is TX a race, race-notice, or notice Jx?

Answer 54

TX has only a NOTICE recording act.

Question 55

What weird effect does a quitclaim deed have in TX?

Answer 55

QC-deeds in TX automatically put the grantee on notice of any defects that exist in the chain of title; hence, any Grantee under a QC-deed CANNOT be a BFP at law.

Question 56

What is used as the primary security instrument in Texas to take a security interest in real property?
What is the debtor referred to as? the lender? any other parties?
Anything else noteworthy about this instrument?

Answer 56

Deeds of Trust (NOT a mortgage)
D = Grantor, SC = Grantee, TP-Tee is also named.
Noteworthy: this is NOT an actual trust.

Question 57

What is an installment land contract known as in TX?

Answer 57

Installment land K (i.e. If default occurs, then K has a forfeiture clause in which vendor may cancel the K, keep all the money already paid, and take possession of the land)–D signs K promising to make payment & S keeps title until loan = fully paid off; at that point, a deed transferring legal title from S to D is given.

In Texas, this operates exactly the same, but the concept is known as a Contract for Deed

Question 58

What is the difference between the equity of redemption and the right of redemption?
Any Texas twist to either?

Answer 58

Equity of redemption = stop the foreclosure sale (post-default and post-repo by paying full, typically accelerated amount).
Statutory right of redemption = limited time post-foreclosure sale for the mortgagor to re-acquire the property.
Texas-Twist: No Statutory rt-of-redemption following Deed-of-Trust foreclosure; however, Equity of redemption still exists in the common law form in TX.

Question 59

What is the effect, in terms of foreclosure and sale, of the DoT being the preferred security instrument in RP?

Answer 59

The result is that the NON-JUDICIAL FORECLOSURE is the typical sale used for foreclosures, which must satisfy specific statutory criteria.

Residential property:
I) D must be given notice of default
II) Such notice must be accompanied w/time to CURE
III) Cure time min = 20-days.
IV) If no cure, then Notice of sale @L 21-days pre-sale.
V) Contents of Notice of Sale:
–A) Time & Date
–B) Posted at the courthouse
–C) filed w/County Clerk
–D) If clerk’s office maintains website, then must ADDITIONALLY be made available on the website.
VI) NoS & NoDefault = Delivered to ALL Ds on the note
VII) NoS & NoD Delivery method = Certified mail w/return receipt requested
VIII) ToSale = First Tuesday of the month b/t 10AM & 4PM.
IX) If 1st Tuesday = January 1 or July 4, then ToS = 1st Wednesday of the month b/t 10AM & 4PM.
X) Court is not and cannot be involved in the process
XI) Trustee provides all notices
XII) Trustee conducts the sale
XIII) Trustee executes a “Trustee’s deed” at the conclusion of the sale
XIV) “One Sale, One County”–No inter-county prop commingling @ Sale (i.e. if multiple properties in more than one county = multiple sales; OR if multiple props in one county = all props sold or NO props sold–all or nothing type of deal).

Question 60

Regarding non-judicial foreclosure sales, when must junior interests be notified as “necessary parties” in Texas?

Is there any exception to the general rule?

Answer 60

Never, junior interests are only necessary parties for a judicial foreclosure sale in Texas; however, notice to JICs is not required under a power-of-sale foreclosure.

Single Exception: K-agreement exists in which notice must be given.

Question 61

What is the consequence re: deficiency judgments if the non-judicial-foreclosure-sell process is improper?

What is the $-Amt assuming that the proper process is utilized?

Answer 61

Improper = NO recovery. Period.

Proper = ($-Outstanding-debt) (-) ($-FMV-@-ToForeclosure)
Proper =/= ($-Outstanding-debt) (-) ($-Sales-Price-@-Foreclosure)

Question 62

Assuming that no PMM/PMSI/other CL/UCC concept applies, what is the one statutorily created lien that can take priority over an earlier perfected mortgage interest?

Answer 62

An MML or a validly perfected statutory mechanics’ and materialmen’s lien may protect workers and suppliers to workers on RP and it has priority over Mortgages or other liens.

Question 63

What are the 13 reqs to perfect the statutory MML?

Answer 63

I) Affidavit filed w/county clerk where RP located.
II) Aff-ToF = No later than the 15th day of the 4th calendar month after the day the indebtedness accrues
III) Aff-content = $-Amt of claim
IV) Content = Names & Addresses of all relevant persons
V) Content = General statement of work done
VI) Content = General Statement of material furnished
VII) Content = Legal description of property sought to be charged w/MML lien.
VIII) Aff-Copy = Delivered to O.
IX) ToDeliverytoO = w/in 5-days of Aff-filing.
X) Method of DeliverytoO = Certified/Registered mail
XI) Foreclosure method = ONLY Judicial (no power-of-sale)
XII) ToForeclosure = AFTER obtaining court order.
XIII) ToPriority = ToCommencement of work/ToDelivery of materials to the land (i.e. ALWAYS relates back NEVER gets the date of Aff-recording [assuming valid perfection]).

Question 64

Regarding Installment land Ks in TX (i.e. Contracts for Deed) what are the key protections that have been implemented to statutorily protect the Buyer since 2001?
What about the 2015 update?

Answer 64

2001:

1. Sellers must give Bs detailed statutory notice of a prospective forfeiture.
2. If: I) B has not yet paid 48-monthly payments & II) B has not yet paid 40% of the principal due on the contract, and III) Contract for Deed is NOT RECORDED, then B has 30-day period to cure the default.
3. If any of (I-III) fail, then: A) B has a 60-day-cure period, B) No forfeiture is allowed, C) No rescission is allowed, and D) S must proceed with a NON-JUDICIAL foreclosure sale.

2015: If a Contract for Deed = recorded, then C4D is treated as a GENERAL WARRANTY DEED w/Vendor’s Lien attached/perfected.

Question 65

What are the 10 requirements for establishing a homestead?

Answer 65

I) Establishor = Family/single ADULT
II) Present Right to Possession of RP (e.g., LE/Leasehold = sufficient; VRinFSA = X);
III) Intent to have RP serve as homestead;
IV) Actual occupation/such acts of preparation that the court can conclude that you were ABOUT to occupy Rp (e.g., Just bought undeveloped land + No current HS)
V) Rural/Urban sub-reqs satisfied:
–Rural:
—-A) Family<=200 (Adult<=100),
—-B) Non-contiguous/contiguous,
—-C) all used as HS allowing for living on part & remainder = used for support of family/Adult,
——Rural = default; i.e. if TPC-Urban = X, then Rural HS.
–Urban:
—-A) w/in city limits/extraterritorial-Jx/platted subdivision
—-B) police protection
—-C) paid/volunteer fire protection
—-D) city-provided/city-contracted @L3: NESSW (Natural gas, Electricity, Sewer, Storm stewer, Water)
—-E) Adult/Family <= 10-acres (same)
—-F) Contiguous
—-G) NOT dual-classified as rural (i.e. RHS & UHS = mutually exclusive).
VI) None of the 8 Exceptions apply TRIMORPH:
–1) Tax Liens (Fed/State)
–2) Refinanced any of the other 7
–3) Improvements-MML
–4) Manufactured Home (i.e. chattel mortgage) Refi via an RP mortgage.
–5) Owelty of partition Jment
–6) Reverse Mortgages
–7) PMM
–8) Home Equity Loan/Home Equity Line of credit.
VII) No dual-spouse conveyance/encumbrance.
VIII) No death of both spouses AND all minor kids
IX) No abandonment (evidence of non-use AND intention to cease using RP as HS; any intent to return & occupy = NO abandonment)
X) Existence of HS = Presumed to continue into perpetuity.