TX real property Flashcards
If a deed uses the words “grants” or “conveys” there are two present covenants impliedly included:
covenant against encumbrances and covenant of “no prior conveyances”
doctrine of after-acquired title
If A deeds property to B that A does not own, and then A later does acquire title, then B owns.
TX recording statute
pure notice recording act
TX installment land contract
called a contract for deed (seller keeps title until loan paid)
residential foreclosure procedure
debtor must be given notice of default with time to cure (min 20 days).
If not cured, the debtor must also be given a notice of sale (min 21 days).
Notice must give date and time of the sale, posted at courthouse, filing with county clerk, and, if the clerk’s office maintains a website, available on the website.
Both notice of default and notice of sale must be sent to all debtors on the note by CMRRR.
Valid sale must be first Tuesday of the month bw 10am & 4pm, in county of property.
When is notice to junior interests necessary for foreclosure?
if there is a judicial foreclosure sale, not power of sale foreclosure.
Deficiency judgment
If proper process is utilized, limited to difference between outstanding debt and FMV at time of foreclosure (not between debt and sale price)
4 requirements to perfect statutory mechanics’ and materialsmen’s lien. The affidavit must:
1) be filed w/ county clerk where property located by 15th day of 4th month (3rd if residential) after indebtedness accrues.
2) list amount of claim, names/addresses, statement of work done and material furnished
3) give a legal description of the property
4) send copy by certified or registered mail to owner w/ 5 days of filing.
when is MML perfected?
date of commencement of construction of improvements or delivery of materials, not date of recording
statutory protections for contracts for deed
1) sellers have to give buyers detailed notice of a prospective forfeiture.
2) buyers have a statutory 30 day period to cure the default if they have not yet paid 48 monthly payments or 40% of the principal due. If so, buyers have 60 days and there is no forfeiture and rescission allowed. Seller will have to proceed with a non-judicial foreclosure sale.
Options to seller under contract for deed if there’s the usual forfeiture clause:
cancel K, keep money, and take possession.
transfer of mortgage by mortgagee without note is…
void
water rights for rivers and lakes
A permit regulatory system exists in TX, with prior appropriation being the main factor (first beneficial use can continue), and previous uses before the new law can be continued.
water rights for ground water
TX follows the English rule of capture and says that a landowner does not have to be reasonable: you can take all of the water from a well on your property even if you wind up taking all the water from your neighbor’s well at the same time. Limits: malicious, waste, subsidence of neighbor’s land.
water rights for surface water
natural flow approach- courts allow reasonable steps to deal with flood water. If it would injure others, can’t refuse to take natural drainage, divert water onto another’s land, or alter natural flow. Drainage pipes/ditches to divert water are OK if reasonable. If property damaged from unlawful diversion, may recover damages.
Rural homestead
200/100. Rural if not urban. Urban if within municipal limits/extraterritorial jurisdiction/platted subdivision and: served by police protection, paid or volunteer fire protection, and at least 3 of these services provided by a municipality or under contract to a municipality: electric, natural gas, sewer, storm sewer, and water (even if you opt out).
Only 8 liens can validly attach to homestead (acronym–PTMORHRR: payday TMORow helps reap righteousness):
PMSI, taxes, MML for improvements, owelty of partition judgments, refinancing an otherwise permissible lien, home equity loans and lines of credit, reverse mortgages, and refinance of a chattel mortgage with the mortgage of land.
required notice for ending periodic tenancy
required notice is 30 days and the notice does not have to be given so that it will end on a period ending date. There can be proration of rent.
landlord duties in residential leases
No CL implied warranty of habitability in TX. There is a statutory requirement that landlords repair conditions that materially affect the physical health or safety of an ordinary tenant. Almost impossible to waive. If LL fails and tenant properly utilizes statute, tenant can move out, stay and repair and deduct the cost of the repair, or sue the LL.
landlord duties in commercial leases
implied warranty of suitability covering latent defects in the essential facilities of the leased property. May be waived.
tenant right to assign/sublet
by statute, there is no right unless LL gives permission.
prescriptive easement time period
10 years (20 for MBE)
transferability of easement in gross
can’t be transferred unless the language of the easement says so. The one exception is the conservation easement.
adverse possession
Color of title–3 yrs
Duly registered deed and payment of taxes (recorded deed that is defective, but pays taxes)–5 yrs
Bare possession–10 yrs (limited to 160 acres unless larger area fenced in; but if the possessor has a “deed” that doesn’t meet the first two categories, possessor acquires to the land in the deed)
If true owner under disability–25 yrs
Disabilities that will toll the limitations statute for adverse possession
being a minor, of unsound mind, or armed forces during time of war. Note: being in jail does not count
who has risk of loss during executory period (after contract of sale, before closing)?
the person in possession
Warranties in sale of new home
1) implied warranty of good workmanship–builder promising that the quality of construction meets a certain level. A disclaimer is only valid if the builder replaces with an express warranty for the quality of construction.
2) implied warranty of habitability–residence is suitable for human habitation. Waiver generally invalid.
Seller duty to disclose before sales contract
Statutory seller’s disclosure form must be completed honestly by the seller and provided to the buyer before entering into the sales contract (if property purchased at foreclosure, the form is not required at a subsequent transfer).
Life tenant duties
Under the common law, the owner of the life estate is entitled to rents, revenues, and benefits of the estate, and is also charged with the improvements, repairs, and taxes during the term of the life tenancy.
reimbursement to a co-tenant in a tenancy in common
a co-tenant who incurs expenses for the necessary preservation of property is entitled to proportionate reimbursement from the other co-tenants. But no reimbursement for spending for more speculative reasons.
If rental premises are totally unusable for residential purposes
If rental premises are totally unusable for residential purposes and the casualty did not result from the tenant’s negligence, either the LL or T may terminate the rental agreement at any time prior to the completion of repairs by giving written notice.
Security deposit
SD must be refunded by a residential LL to T within 30 days after T surrenders premises. LL may deduct damages and charges for which T is liable under lease or from breaching lease. LL need not return the deposit until T gives LL a written statement of T’s forwarding address.
If premises totally unusable for residential purposes and casualty did not result from T’s negligence
either LL or T may terminate the lease by giving written notice any time prior to completion of repairs. T gets pro rata refund.
Residential T’s remedies
1) terminate lease
2) repair and deduct from rent
3) if not repaired or remedied within 7 days of notice of intent to repair, seek judicial remedies
establishment of homestead
show combo of overt acts of usage and intent to claim the land as permanent residence. Actual occupancy/use alone will not make homestead, but is most convincing evidence of intent.
Covenant that runs with land
Its binding on successors in interest. A covenant runs if the original parties so intend and if covenant touches and concerns the land (benefits/burdens with respect to their interests, vice versa). Need notice
Required notice from purchaser of mineral/royalty interest who sends offer by mail and encloses an instrument of conveyance and payment for the interest
1) conspicuous statement (14 pt), property description, communicate clearly that by executing and delivering the instrument, owner is selling ___.
2) P must give 30 days’ written notice that she wil file suit unless resolved
3) Rescission or damages (greater of $100 or difference bw amount paid and FMV at time of sale, plus court costs and reasonable attorney fees)
general warranty deed
contains a general warranty clause: obligates grantor to indemnify grantee for loss caused by any claim against title.
special warranty clause
restricts the scope of grantor’s warranties by protecting the grantee against only claims of persons deriving their interest in the property through the grantor.
mandatory requirements for a valid deed
requirements to be recordable in the real property records of the county where the property is located
writing, signed by grantor, designate grantee, contain words of grant, contain an adequate legal description, delivery and acceptance
acknowledged, sworn to, or proved (if not acknowledged by notary public or otherwise witnessed, it won’t work)
