TX Land Titles 2014 Flashcards
Examining Title to Sovereignty
Every title comes from some sovereignty.
Must locate the patent.
Texas titles come from:
4 sources:
- Spanish
- Mexican
- Republic of Texas
- State of Texas
NOTE: None from France
Earnest Money K - Defined
Set of promises, if broken, that are enforceable in a court of law. The law gives official recognition to contracts or promises between parties (basic K)
Requisits of a valid K
- Offer
- Acceptance
- – Must be in strict compliance with the terms set out in the offer, if something new is set out or rejected, the response is actually a counter offer - Consent
- – Something that demonstrates a meeting of the minds/mutual assent
- – To be enforceable, the terms must be sufficiently clear/certain both of the nature of the parties’ intention and the expectations of the parties.
- –Evidence is shown by a signature and delivery (the idea of being bound)
- – Courts will review this element objectively - Consideration
- – Present exchange for a bargained promise (Usually when money changes hands) - Execution/ Delivery
- – Typically when parties demonstrate through their actions that the K has manifested
Terms of the K (w/regard to Consent)
- Must be certain in the K (i.e. they must be totally spelled out)
- To be enforceable the terms must be sufficiently clear/certain both of the nature of the parties’ intention and their expectations
- A court will NOT enforce a K unless is can determine what the actual agreement was
- ** MAKE THEM OBJECTIVELY DETERMINABLE ***
Can a contract be oral?
A K is enforceable whether it is oral or written. The idea that contracts need to be in writing is related to the SOF and the transfer of real property.
When a K is oral, the court looks at:
- Communication (any writings in reference to the k)
- Circumstances surrounding the K situation
- All looked at as a whole to find the necessary elements of the K
What is a K promise?
An express or implied declaration made by one person/entity made by one person that is a declaration for the purpose of making sure that a person/or entity that a specific action (or restraint from a specific action) will occur.
How is something objectively determinable?
Something that indices what the intentions of the parties are.
When intentions are expressed or communicated or taken they become objectively determinable.
KNOW: The court will NOT read a person’s mind, they must rely on what is objectively determinable to decide what the parties’ intentions or expectations are.
When is a K reviewed?
At the time it is made. (Not in light of subsequent events).
Why recitals are important.
SOF Applies To:
- A REK & L for more than 1 year
- Any transaction involving real property
Must state the essential elements (or refer to a writing that does) , does not require the consideration terms of payments be in writing (although there needs to be consideration). The essential elements must display a meeting of the minds (i.e. objectively determinable) and cannot be provided by parol evidence.
Can be more than one document as long as when viewed together they reflect agreement.
What needs to be recorded?
Not the entire deal, just a memo of agreement that is subscribed by the parties to be charged (or his agent), and signed by both parties.
There is no action as long as there is something in writing embodying the agreement.
Sufficiency of Land Description
Must be good (can surveyor go out and survey the land?)
Can be in the document or refer to another.
If the description is incomplete, it is not sufficient.
Exception to the SOF
ALL MUST EXIST.
If you have an oral or written agreement:
- Payment (Actual consideration, paid in full (or substantial sometimes))
- Purchaser is in possession of the property.
- Valuable improvements to the land have been made.
Hooks v. Bridgewater.
Oral modifications to a K subject to the SOF
Acceptable as long as they do not materially alter the underlying agreement.
- If it affects an essential element, the change must also be in writing.
- Terrell: Make all changes in writing and always have both parties sign.
- Time is of the essence = change in writing
Texas Business and Commerce Code 26.01
(The whole idea is that we will have a writing because the SOF says that contracts involving real estate says that they are unenforceable unless it is in writing)
- Promise or Agreement must be in writing
a. Must be in writing
i. By at least a memorandum
b. Must be signed (by the person or his agent)
c. If in subsection (b) - Subsection (a) applies to …
a. Probate issue
b. The sale or lease of real property - Ask: Can we find a writing or a memo or something that is objectively determinable that would indicate that there was an agreement of the parties? Wade v. State National Bank.
- Applies To:
a. Real Estate Contracts (REK)
b. Leases for more than 1 year - The writing can be a memo (Subscribed by the party to be charged – or an agent, and must be signed by both parties)
- No action if there is something in writing that embodies (or references – like above) the agreement
- The K must state the essential terms (or refer to another writing that discusses them)
a. Cannot be provided by parol evidence
b. Must be unambiguous and mutual (i.e. a meeting of the minds) - The essential terms and the SOF protect against fraud (like a shield), because land is such an important commodity, each piece is unique, also fairly expensive transfers and want to really find that there is an agreement.
a. Goal: Make parties be more committed to the agreement to the point that it is enforceable - Can be more than one document (Letters, e-mails, etc. can be a document as long as when they are all viewed together they reflect an agreement by the parties)
- There must be a sufficient land description (particularly in sales and leases)
a. Can be in the document or refer to another document
b. If the description is incomplete, it will not be sufficient - Exception to the SOF (Hooks v. Bridgewater) : In Texas you can relieve a parol (oral) sale of land from the SOF as long as three elements are present:
a. Payment of consideration in money or services
b. Possession by the vendee (Or person by the person whom the property was transferred)
c. Improvements (Valuable or permanent) by the vendee w/permission from the vendor
d. *All three elements must exist at the same time in the same person. - Remember the SOF is intended to be used not as a sword but as a shield
- Modification for the sale of real property – Can they be orally modified to meet the SOF?
a. Yes. Provided that the modifications do not materially alter the underlying agreement.
b. If it does affect an essential element then the modification itself must be in writing as well
c. Terrell thinks any change must be in writing, attached to the K, signed by both parties
i. Especially in a REK
d. Standard: Time is of the essence, time change is probably a modification that needs to be signed by both parties to avoid SOF problems.
IS the SOF a sword or a shield?
Shield, it is an affirmative defense. Must be raised it in pleadings.
Option K in General
Owner offers to convey the property to the holder of the option on stated terms for a specific period of time. The holder of the option (for consideration) is granted the right/option of excepting those terms, stated in the offer, during that time period.
- Must be revokable
- TX, viewed as REK (sub. to SOF)
Option w/o Consideration doesn’t really exist, mainly just a revocable offer.
Elements to an Option K
Owners covenant to hold open the irrevocable offer
— Owner gives a binding promise to open the opportunity to accept the owner’s offer of the real property interest
Contract for acquiring a K interest
- – The underlying K for the purchase of property does not become binding until it is accepted by the holder of the K.
- – It is a contingent future interest and will only exist if the holder accepts the owner’s offer
Option v. Sales
How to tell the difference:
- – A k to sell binds the buyer and the seller to a purchase at the time the equitable title passes from the buyer to the seller at the time of executing the K
- – An option gives the holder the right to select to purchase the property as stated in the terms but he is not obligated to do so
TEST: For Option K
Primary Test: Whether the K imposes a mandatory obligation on the owner to accept a stipulated sum as liquidated damages, in place of the purchasers limited liability
- In absence of this obligation, the K is a sales K
- Liquidated damages only occur as a consequence on an options K
- – If there is independent K consideration, it is not an option
- – Options are typically short because the REK w/the terms are attached
Essential Parts of Surveying
Some essential parts of surveying are looking at historical documents, along with math, physical science, jurisprudence related to boundary lines, natural objects, and artificial objects.
Once all of these things have been looked at and considered, then the surveyor completes products – the survey memorializes the findings and professional conclusions of the surveyor
- Maps, recorded plats, monuments, prep or legal description, in the form of a written report
- These services and the products the surveyor prepares are of value to people who are acquiring, already have, or are lending money on the property
Land surveys are used by attorneys to …
- Related to land title
- Legal description (For K)
- Survey is also used when actually conveyed to prepare the deed
- Survey provides assurances to the condition of he title that cannot be evaluated by public records (can’t see where the boundary lines are looking in the books at the courthouse – the survey gives us a picture of some sort)
- Gives location of existing improvements (house, easements, etc.)
Cat. 1A: Land Title Surveys:
a. Focus is directly on the purpose of insuring title, and the surveyor should consciously search for record or visible evidence of easements, the possibility of prescription or limitation rights, and the presences of visible improvements
b. Surveyors look for:
i. Will locate the boundary lines
ii. Easements in or adjacent to that might affect the sub. property
iii. Contain recorded or visible easements that burden the property
iv. Presence of improvements (visible and those left there) on the property
c. Productions of survey will include
i. Monuments located at corners, points of curves, and referenced adj. property
ii. A signed, sealed, and dated written description depicting the tract (the description)
iii. A … and certified plat of survey clearly depicting the survey as made on the ground and
iv. If required, as sup. written report of the surveyor’s findings, expert opinions, and possible alt. opinions based upon conflicting evidence found
d.Purpose: Insuring title
e. Degree of detail can vary, depending upon the requirements of the transaction, some things might be left out
i. Commercial transactions (esp) the attorney and client really need to be familiar with the property & work closely w/the surveyor to explain the needs. If not, you might have an easement through the middle of your land after construction starts – then you’ll have to buy the easement
f. Accuracy and completeness is essential
i. Important to update surveys since so many are done a lot time ago
*NO SUCH THING AS A PERFECT TITLE
Things that you’re willing to accept
Category 1B: Standard Land Survey
a. A “boundary” or “traditional” survey
b. Focuses on the location on the ground of the perimeters of a parcel and determination of area w/in it
c. Will include rights of way and easements w/in or adjacent to the tract
d. Will examine deed lines & occupation lines
Category 2: Route Survey –
a.Specialized boundary survey for the purpose of est. a planned path for a linear project or right of way which follows a prescribed alignment
b. Center line and specifies a width of a particular distance on either side of it
i. Easements might go out on the sides of the center line
c. Or traditional metes and bounds description
i. Can have it is metes and bound where the center line is in the middle of the metes and bounds
Category 3: Locative Survey (Sight Plan or Layout Survey)
a. Usually a supplemental survey used as an early step in the construction of improvements
b. Reference stakes, markers, or monuments are set as a guide for contractors in grading the land or setting construction baselines, etc.
c. Stakes with ribbons on it or a monument – pointing out where the improvements will need to be
i. Can everything be there or will the architect need to make changes?
Category 5: Construction Survey
a. Category 4 was for mortgage loan inspection and was deleted in 1981 when Cat. 1 was divided into 1A/1B
b. Follows locative survey by providing precise control on the construction of improvements as they proceed to completion
c. Monitors horizontal positioning, elevation, dimensions, and configuration of the improvements
d. Sometimes called an “as built” survey
i. Survey representing the property after construction
Category 6: Topographic Survey
a. Intended to determine configuration or elevations of both land and improvements located w/in a tract
b. Produces a topographic map used by engineers, architects, land planners, and developers for a variety of purpose
i. Drainage, where water systems are located, do you need a pump station, etc.
c. Relatively expensive technique but can be very practical on projects larger than 10 acres
i. Highly technical equipment (computer)
Category 7: Horizontal Control Survey
A master survey designed to precisely coordinate horizontal position data into a framework to which other surveys are referenced
Control surveys needed for most accurate mapping ..
Category 8: Vertical Control Survey
a. Also a master survey which est. particular control points of elevation measured against an imaginary level surface – usually means sea level
b. Extremely precise measurements tied to national geodetic survey mom
c. Nec for most route systems such as waterways, navigation easements, tunnels, and drainage systems
d. Lot of times used for dams, rivers, construction of lakes
Category 9: Investigative Surveys
a Used to conduct investigations where the locations of objects, elevations, relative positioning, or other physical characteristics are critical
b. Wide variety of applications
i. Accident recreations, time and motion studies
Conditions Precedent
Conditions that relate to the performance under the REK. They are created when parties to the K stipulate between each other that the K is not binding unless a certain condition occurs/is met.
a. Covenant that the K will not be binding unless …
b. If a condition is construed to be a CP there is no K until it occurs, however, the CP must be a true condition and not an a statement of expectations
i. Example: Buyer expects to finance a property through the sale of another property
• You expectations do not create a CP
ii. To make it a CP: “I condition upon
Must CPs be particular?
Yes.
Example: “Buyer is obligated to except any offer above $XXX” (Same goes with interest, if the interest is too high and the buyer fails to accept or the interest rate is perfect and the buyer fails to accept the loan, that poses a problem for the seller.
ii. See Knox v. Townes:
“Satisfactory financing” – Too broad/subjective, define to who
Better: “Purchasers satisfaction must be met in order to move forward with the K,” define satisfactory, give a time limitation, or explain something reasonable
i
Part of issuing Ks has to do with the words you choose to use. You must understand what event has to occur in order for the condition to come into play.
*The drafting of the CP must fit exactly what you are wanting to do in drafting.
If the CP requires the buyer to do something he must ________ the fulfillment of his obligation
Actively Pursue
Is there a K if the CP has not occurred.
The main basis of a condition precedent is that there is no K until the CP occurs
There is no breach or remedy until the K occurs because there is no K until it does so
In cases about CPs the question is not about a breach but whether there is a K at all
— If it is a covenant → then there would be a breach or remedy
Are CPs material terms?
YES. 99% of the time, they will need to be in writing to satisfy the SOF (don’t rely on oral changes, make in writing).
Earnest Money Provisions: Are they a CP?
A deposit made by the buyer w/the seller (or 3rd party, such an escrow agent) to bind the sale of the property.
a. Typically, most Earnest Money Provisions state a certain sum is to be deposited to secure performance of the buyer. If buyer breaches, the seller gets to retain that money
b. This is a covenant not a condition. i. Difference: If you have a condition that does not get filled there is no binding K ii. A covenant is a promise to do or not to do something. The K is still binding but a breach of the covenant is compensable in damages (i.e. the ability to retain the EM). iii. The main difference is the remedies available to each
Timeline of a REK:
Negotiations → K Signed (Earnest money paid) → Title Insurance → Survey → Inspection → MUD →
Closing/Deed Delivery (Money paid in Full)
Equitable Title (Generally)
Buyer get equitable title when the K is signed, the seller’s title is burdened by the equitable interest of the buyer.
a. There is no fee simple until closing
b. Both the legal and equitable title are burdened until the deed convey the property
Does the legal ownership of land pass to buyer when the REK is signed?
No.
Only the legal title, instead it’s a K to transfer the title.
Question: What happens if something happens to the property after the K is signed but before the deed is conveyed?
Who bears the risk of loss while the “in between” on the timeline occurs?
b. If you’re the buyer, the buyer could K to purchase then it burns down a week later before the closing, under the DEC it’s possible the buyer might be forced to pay the purchase price of that property even though it has burned down. i. Buyer gains equities at the time of the closing of the K (which more in favor of the buyer)
Mitigate DEC: Courts have allowed the parties to add their own rules that address the issue of liability for loss in the interim period between signing the K and closing of the property (pre closing period)
a. Prior to signing (during negotiations) something can be added to address the DEC and make the seller liable for any problems before closing
b. The buyer like the seller, generally has equitable title so he has an insurable interest in the property (can get a policy to indemnify for damages/loss) i. Buyer allocates risk/loss to the insurance company
What happens to legal title if seller dies?
Legal title does not pass, it passes to the heirs/beneficiaries under the will (if there is one), so the interest Ked for will pass – the heirs have a title that is burden w/the equitable interest of the buyer. It would have to be conveyed from the buyer to create a fee simple
Tex Property Code 5.007: Vendor and Purchaser Risk Act:
- Any contract made in this state for the purchase and sale of real property shall be interpreted as including an agreement that the parties have the rights and duties prescribed by this section, UNLESS the contract expressly provides otherwise.
a. Because of this act the statute is implied into the K.
b. The legislature has taken this statue and automatically made it part of the K for the sale of RE
c. Addressing EC/ET doctrine
d. There is an out → Unless you opt out or address otherwise in the K - If, when neither the legal title nor the possession of the subject matter of the contract has been transferred, all or a material part of the property is destroyed without fault of the purchaser or is taken by eminent domain, the vendor (seller) may not enforce the contract, and the purchaser is entitled to recover any portion of the contract price paid.
- If, when either the legal title or the possession of the subject matter of the contract has been transferred, all or any part of the property is destroyed without fault of the vendor (seller) or is taken by eminent domain, the purchaser is not relieved from the duty to pay the contract price, nor is the purchaser entitled to recover any portion of the price already paid.
- There is a uniform act – Texas subscribes
a. Texas legislature has created a gap filler, they address the rule if the parties do not address it in the K
Time of Performance:
As a RULE party has to perform his agreed obligation at or within the prescribed unless performance w/in that time is waived by the party to whom it benefits or if the time is extended by the parties.
Modification to time, probably needs to be done in writing.
“Time is of the Essence”
Term of art
a. Option K: Always of the essence b. In REK, generally not when selling and purchasing real property
If you do not perform, can pursue remedies
a. Breach of K, SP, etc.
When time is of the essence, it means that if a title commitment must be delivered on or before 30 days after the date of the K, it means 30 days after that time – period.
a. Can be before that but … if it’s not done w/in that time, you’re in breach
Fixtures:
If it is a fixture, it will pass with real property
a. If it is questionable, address it in the K
b. It is better to assume you’ll make it a fixture and send w/the property i. Texas Real Estate K (Residential) – page 1 example
Item that is personal in nature but is attached/annexed to the real property that in law, it becomes a part of the real property (THINK: Commercial Law)
3 Part TX Fixture Filing Test:
- Has there been a real or constructive annexation/attachment
- Is the article (the object) adaptable to the use/purpose of the real property
- Was it the intention of the party making the annexation that the object or article become a permanent accession to the real property
* Of the three above (must have all three), the most weight is given to the party’s intent
NOTE: Something cannot always be a fixture (even a generator bolted to the ground)
Arbitration/Mediation:
Generally enforcement of arbitration/mediation clauses in Texas is subject to the specific rules of the Gen. Arbitration Act (must come w/in statutory provisions)
a. Any arbitration award is binding upon the parties b. The act makes no provision for non-binding arbitration Procedures c. Enforcement of Article procedures if favored d. Requires mediation before arbitration
- When total consideration is $50k or less, an agreement to arbitration is not valid unless all parties agree.
a. In writing, signed by the parties & their attorneys - “Other choice” is mediation (Terrell thinks its great)
a. Must be stated in the K as a remedyb. Because litigation is so expensive, mediation is a “cheaper” way to get disputes resolved
Parties to the K:
- Early on in negotiations w/parties involved in REK, each of the parties needs to ascertain the identity of what party they are & what party the “other” party is.
- What is the legal capacity of the parties
a. Stickler about representative capacity & signing (title companies are as well)b. Do they have authority to deal/represent the parties in interest to the K - When title insurance is evolved, they must have all documents to show what capacity/authority the parties have
a. Typically easy to address but, if you get too late, you have to go undo stuff
b. Marital property comes into play – whose name is on the documents, who do I need to get signed?
i. As a pro forma, might get the spouse to sign, just to be safe
c. For individuals not as much of a problem but can be an issue re: legal age to K, sufficient legal capacity
Earnest Money:
How much does seller expect?
What’s the motivation for the seller?
i. Show capability of purchasing the property now & in the future
ii. If multiple parties are interested in the property, you want enough that it’s worth putting off the other sellers iii. Generally if K is performed the EM goes toward the purchase of the property
iv. Seller wants to make it hurt a little – if you don’t go through w/the K you are hurt by the loss of money a little bit
v. Is 10% or 20% too high?
Can be set too high
How much is the buyer willing to put down?
One area where negotiating a REK that is not regulated or managed
What establishes homestead law?
Art. 50 of the Texas Constitution – Laws are expansive and deeply rooted in history of Texas (all the way back to Stephen F.). These rights have enjoyed “Sacred” levels of protection. Founded on public policy of protecting citizens from destitution.
Grows out of the civil war in that carpet baggers were coming in and getting mortgages on homesteads and taking them
Courts tend to be ____ of the homestead owner..
Courts tend to be very favorable to the homestead owner
i. Liberally construed to protect homestead owner
ii. Considered “favorite” of the law (i.e. courts will bend over backwards) iii. The problem is favoring a dishonest debtor and hurting a creditor, even if it is unfair to the creditor iv. Very fact specific
Generally when claiming a homestead you are claiming what?
When you are claiming a homestead, you are claiming exemption from forced sale of creditors (cannot sell homestead to pay particular debts)
a. Special protection not extended to other types of real property (if it’s non-exempt real property, creditors can attach and pay debt – i.e. foreclosure)(Strong fortress) i. Creditor – Don’t screw around ii. Debtor – Best protection in TX b. Protection = Prophylactic Protection
Urban Family Homestead
One ore more contiguous lots amounting to not more than 10 acres in the city town, village and used for the purpose of a home and a place to exercise a business or calling of the claimant together w/the improvements
Rural Family Homestead
200 acres not in a city, town, or village used for the purposes of a home together w/improvements
Single Urban Homestead
One ore more contiguous lots amounting to no more than 10 acres in a city, town, or village, and used for the purposes of a home or both as an urban home and a place to exercise a business or calling for the claimant together w/improvements
Single Rural Homestead
100 acres not in a city, town, or village used for the purposes of a home together w/improvements
Distinguishing the Rural/Urban Homestead
1.Can claim either rural or urban homestead but not both
- Cannot “blend” homestead part urban and part rural
- - Can be on the line, can’t blend
- - Not an elastic rule – cannot be stretched - Characterization is critical as it determines many other issues – amt. of acreage, liens, joinder of spouse, etc.
- Characterization is a question of fact, not choice
- -While the statue and considerations are liberally construed, TX law does not presume one form of homestead over another (urban vs. rural) - Traditional analysis is dicey – no help from Texas Constitution
- - Just says you’re entitled to a homestead, not how to distinguish rural or urban) - 1989: Tx Legis Adopted a “Rural Homestead” if at the time it was designated it was not served by municipal utilities, fire or police
- 1999: Tex. Property Code 41.002 – Defining a Homestead (9/1/99)
Tx Property Code 41.002(c)
A homestead is considered to be urban if:
a. Located w/in the limits of a municipality or its ETJ (extra territorial jurisdiction- think waters – municipality can extend a certain distance from its actual perimeters) or a platted subdivision; and
b. Served by police protection, paid or volunteer fire protection, and at least three of the following services provided by a municipality:
i. Electric
ii. Natural gas
iii. Sewer
iv. Storm Sewer; or
v. Water
- Must satisfy both (a) and (b) ((1) and (2) in the statue) to be an urban homestead
- By negative implication, any homestead
Definition of “Family”
Term of art under Texas Homestead Law (not necessarily, “TV family”)
Comes out of cases & statutes (no guidance in constitution)
Family (Cases) = A group of people having the social status of a family living subject to one domestic government, the head of the family must be legally or morally obligated to support at least one other family member and there must be a corresponding dependence by the other family member for this support. (Need all three)
Family = One of status, not K (Descends upon a particular fact situation)
Social Status of Family
“TV family” is not required to establish a family homestead
Social relationship is what is mentioned in cases, such as: husband and wife, single grandparent w/grandchild, grandparent, adult married child and minor grandchild, adult child and parent, brother and sister, divorced parent and minor child (even if that parent does not have custody of the child), widower w/no dependent children (many more from cases)
Must look at the facts
Duty of Support
Court determined evidence failed to show father, mother & two adult sons = single family, bc no legal or moral obligation to support two adult sons
Husband and wife entered into premarital agreement stating that they had no obligation to support each other during marriage, creditors claimed this premarital agreement prevented the couple from claiming a rural family homestead – the court question but did not decide the strong public policy re: mutual support between spouses & noted that the family obligation is one of status and not of K (can K away the legal but not the moral), held that even if the agreement was effected to eliminate legal, failed to get rid of moral – husband had to support the family bc of morals
State of Dependence
For a dependent minor or elderly infirmed can be either emotional or financial
However, if not talking about minor or infirmed, the need for support must be financial
Financial dependence need not be absolute
e. “Family” Status affected by death/divorce/marriage
Family can only have 1 homestead – for all constituents of the family
(Ex: Wife and husband have to have same, not two different homes)
Residential Homesteads:
Must be made up of the dwelling house constituting the family residence
a. (i.e. not the mother in law apartment)
Together w/the land on which it is situated
And all property used in connection w/ the residence
a. Carries w/ it the dwelling house and everything associated with it, well, etc.
Multi- Tract Homesteads:
Formerly, either a rural or an urban homestead could be made up of one or more parcels and they did not need to be contiguous
a. Now, urban must be on contiguous, rural is okay non-contiguous
Effective 1/2000, Constitution and Property Code have been amended to provide that an urban homestead be used for the purposes of an urban homestead or as both an urban home and a place to exercise a calling or business.
This prevents a debtor from claiming a separate business homestead on property not also used as a home (could do this in the past).
a. Issue: Zoning Laws (problems allowing this)
Property Subject to Homestead:
Generally, any present possessory estate in real property coupled w/ the required occupancy will support a homestead claim.
a. Even if fee title is in the name of someone else, can claim homestead in different types of property regardless of the title i. i.e. If you have a leasehold, your protection doesn’t go beyond the leasehold b. Have to have some interest/occupancy in the property to claim as a homestead c. Recognized Ownership: - - Tenancy in common (Undivided interest in the property that will sustain the homestead claim – debtor’s is also subject to a right of partition w/the other tenant) - -Tenancy at will – Will sustain subject to the record owner terminating the tenancy at will - -A claimant who has an interest in an equitable estate can claim a homestead in that estate
Example: Debtor who is getting equitable interest in a tract of land (i.e. he doesn’t have “legal title” yet)
- Life Estate
-
- Leasehold Interest – Debtor can claim a homestead interest in leasehold property
- For a specific term, term of years, or at the will of the record owner
- Extends to security deposits, or prepaid rents
- Leasehold Interest – Debtor can claim a homestead interest in leasehold property
KEY: Debtor must have a present possessory interest
e. Partnership Property: Individual property owner in the partnership may not claim a homestead on his portion of the property
Spousal Exception to Homestead Law:
Husband owned property (not community), husband dies, the SS then can claim a homestead in that because they are a married couple
Until the homestead is given up, that person has a right to live in that property
Only exception regarding having some type of interest in the property and still being able to claim a homestead
Ownership alone is _____ to establish a homestead.
Insufficient.
