Real Property Flashcards
When can an owner withhold payments owed to the original contractor?
When the owner receives lawful notice of the claim - not liable for any money paid to the original contractor before he received notice
What is the effect of an owner receiving notice on a lien?
The lien has been secured and reduced to a final judgment, the owner is liable, and his property is subject to a claim for any money paid to the original contractor
Who may secure a mechanic’s lien?
In Texas, a contractor, subcontractor, architect, engineer, surveyor, or other supplier of materials (materialman) or labor to be used for the construction or repair of a house, building, improvement, or railroad may secure a mechanic’s lien on the property if the materials or labor were provided pursuant to a contract.
What does a mechanic’s lien do?
Secures payment for labor performed, for materials furnished, or specially fabricated, or for the preparation of a plan or plat
T/F the property owner must retain during the progress of work and for 30 days after work is completed either 10% of the contract price of the work to the owner or 10% of the value of the work measured by the proportion that the work done bears to the work remaining, the contract price, or, if no contract price, the reasonable value of completed work.
I don’t know, true
What does someone filing a mechanic’s lien need to do?
The person claiming the lien must file an affidavit with the county clerk no later than the 15th day of the 4th calendar month, or the 3rd calendar month for residential projects, after the day the indebtedness accrues
What does an affidavit for a mechanic’s lien need to contain
signed by the person claiming the lien and must include a sworn statement of the amount of the claim, names and last known addresses of the owner, original contractor, and claimant, a statement of work preformed and a legally sufficient description of the property
What are the 6 covenants in a general warranty deed?
Present covenants - Covenant of seisin, covenant of right to convey, covenant against encumberances
Future covenants - right to quiet enjoyment, covenant of warranty, covenant of future assurances
What covenants does a special warranty deed contain
same covenants as a general warranty deed, but only warrants against defects arising during the time the grantor has title
What warranties does a quitclaim deed have?
None - basically you’re screwed
What do you need for a homestead to exist in texas
there must be an enforceable right, plus the right of possession in the property. Must intend to occupy the property as a homestead and make overt acts signaling such intention
rural homestead consists of…
200 acres for a family and 100 for a single person
urban homestead consists of…(also what does it need to be considered urban)
no more than 10 acres of 1 or more contiguous lots
property is (1) located within the city limits, its extraterriotiral jurisdiction, or platted subdivision, (2) served by municipal police, fire protection, and at least 3 of either electric, natural gas, sewer, storm sewer, or water services.
Can there be a mixed homestead?
No
In Texas, an instrument conveying real property may not be recorded unless…
it is signed and acknowledged or sworn to by the grantor (i) in the presence of two or more credible subscribing witnesses; or (ii) before and certified by an officer authorized to take acknowledgments or oaths
From whom is the homestead not protected during a forced sale?
purchase money mortgages, taxes on the property, refinance of a lien against the homestead, work and material used in constructing improvements on the property, home equity loans, reverse mortgage, and owelty of partition.
How does an owner show that noncontinuous property is part of a rural homestead?
must show that the second tract—on which he does not live—is necessary to the use and enjoyment of the tract on which he does live, as a home
Can married spouses sell, convey, or encumber a homestead without joiner of the other spouse?
No
what is the warranty of habitability?
In Texas, a landlord must provide a safe, decent, and sanitary dwelling, and he must make repairs of any conditions that threaten the health or safety of an ordinary tenant
Does a landlord have a duty to make repairs?
Yes, the landlord must make a diligent effort to repair a condition if the tenant gives proper notice of the condition, the tenant is not delinquent on rent at the time notice if given, and the condition materially affects the health and safety of an ordinary tenant.
What can the tenant do if the landlord breaches the warranty of habitability?
terminate the lease, remedy the defect & deduct from rent, sue for damages, or defend against eviction if premises aren’t safe or habitable
What is a fee simple determinable?
A fee simple determinable is a fee simple limited by durational language such as “as long as,” it terminates automatically upon the occurrence of the stated condition and goes back to the grantor.
A deed is a ______interest whereas a deed of trust is a ________ interest
title; security
When can promissory estoppel be used to enforce a promise?
if: (i) the promisor should reasonably expect to induce action or forbearance by the promisee, (ii) the promise does induce such action or forbearance, and (iii) injustice can be avoided only by enforcement of the promise.
What is a deed of trust?
a instrument that secures a debt in real estate; allows the creditor to sell the property if the note is not paid.
T/F A leasehold estate is a defeasible interest that will divest when the lease terminates
true, if a lease terminates, then the interest terminates
Duty to protect against drainage
Texas courts impose duties upon lessees to ensure that leased properties are properly and fairly developed, maintained, and administered. Absent express provisions to the contrary, Texas courts impose an implied covenant to protect against drainage
What do you need to maintain a cause of action for drainage?
need to show (i) substantial drainage, (ii) that a reasonably prudent operator would drill to protect against drainage, and (iii) damages measured by the yield of production absent waste.
Ways a gas company can protect against drainage for an adjacent tract
- exercise a pooling clause
- drilling an offset well that would produce a definite quantity of oil
What constitutes a valid notice for a foreclosure sale?
To properly give notice of a foreclosure, the party filing as a result of the debtor’s default must give 21 days notice of the foreclosure sale. It must include the expected time of sale,
When must a valid foreclosure sale be held?
Must be on the first Tuesday of each month between the hours of 10am and 4pm at the county courthouse at the designated area for such a sale, if one was designated
Where should a valid foreclosure sale be held?
In the county where the property is located
Does a trustee deed carry any express or implied warranties?
No - a trustee deed does not carry any implied or express warranties
To be recordable, does a deed need to be notarized and signed by two witnesses?
Yes
Does a line of credit loan qualify as a privileged lien against a homestead?
No - only valid liens against a homestead are (1) purchase money mortgages, (2) tax liens, (3) home improvement loans (d) refinancing, or (e) owelty partitions
Do lots need to be contiguous to constitute a rural homestead?
No, as long as there are enough acts of homestead usage that meet the standard of “comfort, convenience, or support of the family”, the lots do not need to be contiguous
Does a tenant in common need to get the other one’s permission for granting an easement
Yes - any co-tenant needs to get the other’s person because its an encumbrance on the land - need to get permission before doing something that burdens the property
Are tenants in common liable for their proportional share of repairs and maintenance on commonly owned property?
Yes!
Can a tenant in common sell their undivided interest in the property?
Yes - they can sell their interest
If a junior mortgage is extinguished in a foreclosure sale, does that mean they don’t have any rights in the land?
No - they can still go after you for a deficiency judgment
Does a quitclaim deed have an implied covenant of marketable title?
Yes PRIOR TO CLOSING
if the premises is shit (roaches, etc) and the tenant refuses to move in and terminates the lease, does the landlord have a duty to repair?
No! since the tenant terminated the lease, the landlord does not have a duty to repair anymore
When is a landlord required to return a security deposit?
within 30 days after the tenant surrenders the premises.
If the landlord deducts from the security deposit, what do they need to provide? Can they deduct for normal wear and tear?
must itemize and describe in writing all of the deductions
No - only damages or charges for which the tenant is liable under the terms of the lease, or because the tenant breached the lease
