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BAR EXAM > Real Property (TX) > Flashcards

Real Property (TX) Flashcards

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1
Q

CONCURRENT OWNERSHIP

A

CONCURRENT OWNERSHIP

TX has ABOLISHED common-law joint tenancy.

Default is tenancy in common.

But CAN create a RIGHT OF SURVIVORSHIP by agreement (has same effect as CL joint tenancy).

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2
Q

ADVERSE POSSESSION

Basic elements?

A

ADVERSE POSSESSION

Unique WORDING, but same basic elements:
“ACTUAL AND VISIBLE appropriation of real property that is begun and continued under a CLAIM OF RIGHT inconsistent with and HOSTILE to the claim of another”

  • INTENT*
  • T must intend to APPROPRIATE THE LAND AS HIS OWN
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3
Q

ADVERSE POSSESSION

DISABILITIES

A

ADVERSE POSSESSION

DISABILITIES

  • Toll for a MAX of 25 years
  • Minor
  • Unsound mind
  • Armed forces during time of WAR
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4
Q

ADVERSE POSSESSION

What are the three statutes and their SOL’s?

A

BARE POSSESSION - 10 years

DEFECTIVE DEED AND PAYING TAXES - 5 years

COLOR OF TITLE - 3 years

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5
Q

ADVERSE POSSESSION

BARE POSSESSION

A

BARE POSSESSION - 10 years

  • Limited to 160 acres UNLESS:
    • Fenced in a larger area
    • Entered land under color of title (a DEED) that describes more
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6
Q

ADVERSE POSSESSION

DEFECTIVE DEED AND PAYING TAXES

A

DEFECTIVE DEED AND PAYING TAXES - 5 years

- Properly recorded deed that is otherwise defective

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7
Q

ADVERSE POSSESSION

COLOR OF TITLE

A

COLOR OF TITLE - 3 years

- Basically perfect, recorded deed with very narrow defects—difficult to establish

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8
Q

ROL during executory period

A

ROL during executory period

  • The party in POSSESSION (usually seller) bears ROL
  • Per the Uniform Vendor and Purchaser Risk Act
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9
Q

CONSTRUING DEEDS

“Strips and gores doctrine”

Alterations

A

“Strips and gores doctrine”

  • Unless a contrary intent appears in the deed, all conveyances of land that are bordered by a public road or railroad include fee to the center of the road
  • EXCEPTIONS:
    • Grantor owns the land on both sides of the strip
    • The strip is larger, more valuable than the conveyed tract

Alterations
- Alteration after execution has NO EFFECT on the deed—doesn’t void the title, or change the deed’s terms. Read as if the alteration never happened.

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10
Q

WARRANTIES

New construction

Re-sale

A

WARRANTIES

New construction

  • Warranty of good workmanship
    • Quality construction
    • CAN waive, but ONLY IF replaced with some other express warranty
  • Warranty of habitability
    • Suitable for human habitation
    • CANNOT waive

Re-sale

  • Must disclose known, un-obvious defects
  • TX has a disclosure form in the Property Code that sellers fill out
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11
Q

WARRANTIES

Present covenants in a deed

A

Present covenants in a deed

  • If the deed says “grants” or “conveys”
    (1) Covenant against encumbrances
    (2) No prior conveyances
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12
Q

RECORDING

To record a deed in TX, the deed must be:

A

RECORDING

To record a deed in TX, the deed must be signed AND:
- Notarized
OR
- Signed by two witnesses

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13
Q

RECORDING

Protected by the act?

  • Judgment creditors
  • Quitclaim deed
  • BFP of a void deed
A

RECORDING

Judgment creditors are considered BFP’s, protected by the recording act.

Quitclaim

  • Grantee is deemed on NOTICE of any defects in the chain of title
  • So, the grantee of a quitclaim deed CANNOT be a BFP and benefit from the recording act.
  • Even a BFP without notice will LOSE if the deed was FRAUDULENT (void).
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14
Q

SECURITY INTERESTS

Deed of trust (most common in TX):

A

SECURITY INTERESTS

Deed of trust (most common in TX)

  • Non-judicial foreclosure
  • Grantor conveys property to a Grantee. But the Grantor gets to live on the property until Grantee exercises a right of non-judicial foreclosure (when Grantor doesn’t pay off the debt).
  • Trustee, usually closely associate with the Grantee (Bank), holds the real estate in trust until Grantor (the debtor) pays off the debt.
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15
Q

SECURITY INTERESTS

Secondary mortgage

Equitable mortgage

A

Secondary mortgage

  • Secured by the “equity” (FMV of property > the debt) remaining after the FIRST mortgage
  • Owner can take out a SECOND mortgage secured by the equity

Equitable mortgage
- I owe you some money. Here’s a deed to some land—you promise to re-convey it back to me once I pay you what I owe.

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16
Q

SECURITY INTERESTS

Contract for deed (installment contract)

A

Contract for deed (installment contract)

  • Statutory protections for RESIDENCES
    • Default notices should be delivered by registered mail
    • Buyer has 30 days to CURE
    • If default AFTER paying 40% or 48 monthly pmts, seller may not enforce remedy of possession or acceleration
  • Rescission
    • Seller has the option to rescind—must pay the buyer back for payments made during the contract (total unwinding of the K)
17
Q

SECURITY INTERESTS

Vendor’s lien

  • What is it?
  • How does it arise?
  • What special remedies are available?
A

Vendor’s lien

  • Lien in favor of the seller, secures unpaid portion of the purchase price
  • Usually noted on the DEED to give vendor superior title against future CR’s
    • Implied lien arises by OPERATION OF LAW, even if not noted on the deed—but then, it’s only effective against the purchaser, not future CR’s (no superior title)
  • Special remedies—vendor’s options:
    • Sue for the balance due and foreclose
    • Rescind the K—retake possession
    • Sue to recover title (and possession)
    • Only the FIRST option is available if not notated on the deed
18
Q

NON-JUDICIAL FORECLOSURE

SOL =

A

NON-JUDICIAL FORECLOSURE

SOL = 4 years
- Toll during automatic stay in BK

19
Q

NON-JUDICIAL FORECLOSURE

What are the three main steps?

A

NON-JUDICIAL FORECLOSURE

(1) NOTICE OF DEFAULT - 20 days
(2) NOTICE OF SALE - 21 days
(3) SALE

20
Q

NON-JUDICIAL FORECLOSURE

(1) NOTICE OF DEFAULT

A

NON-JUDICIAL FORECLOSURE

(1) NOTICE OF DEFAULT - 20 days
DR receives notice of default with reasonable time to cure—20 days minimum
- Certified mail, return receipt requested

21
Q

NON-JUDICIAL FORECLOSURE

(2) NOTICE OF SALE

A

NON-JUDICIAL FORECLOSURE

(2) NOTICE OF SALE - 21 days
- Date, time, place (usually steps of the county courthouse) of the sale
- Where:
- SEND certified mail to DR(s)
- FILE with county clerk
- POST at courthouse door
* JUNIOR INTERESTS are NOT entitled to notice of a non-judicial foreclosure.

22
Q

NON-JUDICIAL FORECLOSURE

(3) SALE

A

NON-JUDICIAL FORECLOSURE

(3) SALE
- First Tuesday of the month
- Between 10:00am and 4:00pm — can’t be more than 3 hours later than time specified
* Sold AS IS — NO IMPLIED WARRANTIES

23
Q

NON-JUDICIAL FORECLOSURE

DEFICIENCY

A

DEFICIENCY

  • If the foreclosure sale doesn’t pay off the entire debt, the foreclosing party can sue the DR for the deficiency.
  • (TX): Deficiency = FMV - Foreclosure sale price
  • The foreclosing party does NOT get to subtract the sale price from the original contract price. This protects debtors whose homes have decreased dramatically in value. They aren’t expected to pay a huge deficiency based on the price of the house when they bought it (likely before the housing mkt crash).
24
Q

MML

File suit where?
File at same time as or before underlying debt?

A

PROCEDURE

  • Since it’s a judicial foreclosure, must file in DISTRICT COURT
  • Must sue on the underlying debt at the same time, or the lien disappears
25
Q

MML

CONSTITUTIONAL

A

CONSTITUTIONAL

  • Self-executing lien, don’t need to file or provide notice
  • Only the primary contractor in DIRECT PRIVITY with the owner/debtor
  • The materials were “incorporated” into the building or article repaired
  • Value: the value of the labor and/or parts provided
  • BFP takes fee of the lien, unless had NOTICE. If the purchaser knew about the work, then the const. lien is enforceable against BFP’s too.
26
Q

MML

STATUTORY
Primary characteristics?

A

STATUTORY

Contractors, subcontractors, craftsmen, artisans, and materials suppliers for use in construction of IMPROVEMENTS ON REAL PROPERTY

Have PRIORITY over a mortgage, IF PERFECTED.

RELATES BACK to the date the work was completed, if the procedure is followed.

27
Q

MML

STATUTORY

Detailed filing procedure:

A

Detailed filing procedure:

  • File AFFIDAVIT with cty clerk specifying:
    • Where the property is located
    • Legal description of the property
    • Amount of the claim
    • Names/addresses of the parties
    • General statement of the work done and material furnished
  • SEND A COPY of the affidavit by certified mail to the OWNER of the property (within 5 days of filing)
    • The claimant is allowed to rely on representations about who the owner is—not req’d to check title records and all that.
  • DEADLINE: about 4.5 months after indebtedness accrues
28
Q

MML

Subcontractors

A

Subcontractors

  • Can “trap funds” if the general contractor isn’t paying up—tell the owner not to pay the general contractor because they haven’t paid the sub yet.
  • If the owner pays the general contractor after receiving such notice from the subcontractor, the sub has a lien on the owner’s property to the extent he paid the general contractor.
  • *EVEN IF an owner hasn’t received notice of a claim, he MUST RETAIN 10% of the contract price (or value of work done) in case one arises. Has to retain throughout the project and up to 30 days after.
29
Q

HOMESTEAD

How to establish?

Determined when?

Includes what?

A

HOMESTEAD

(1) Intent to make the house your homestead (subjective)
(2) Actual occupation (objective)

Determine the status of the property AT THE TIME THE LIEN ARISES.

  • Extends to permanent accessions to the realty, e.g. FIXTURES
  • Includes leases (just need a present, enforceable right to the land, even if all you have is a lease or a life estate)
30
Q

HOMESTEAD

Rural homestead

Urban homestead

A

Rural homestead

  • 200 acres (100 for single person)
  • Does NOT have to be contiguous

Urban homestead

  • 10 acres
  • Must be contiguous
31
Q

Conveying and encumbering the homestead

- Magic 8?

A

Conveying and encumbering the homestead

  • Magic 8 — the only liens that can attach to a homestead:
    • Purchase money
    • Taxes
    • MML for improvements
    • Owelty of partition judgments
    • Refinancing an otherwise permissible lien
    • Home equity loan, line of credit
    • Reverse mortgages
    • Refinancing of chattel mortgage with the mortgage of the land
32
Q

WATER RIGHTS

Rule of capture
- EXCEPTIONS:

A

WATER RIGHTS

Rule of capture

  • EXCEPTIONS:
    • Waste
    • Malicious
    • Causes neighbors land to subside

BAR EXAM (25 decks)

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