TX real property

Question 1

If a deed uses the words “grants” or “conveys” there are two present covenants impliedly included:

Answer 1

covenant against encumbrances and covenant of “no prior conveyances”

Question 2

doctrine of after-acquired title

Answer 2

If A deeds property to B that A does not own, and then A later does acquire title, then B owns.

Question 3

TX recording statute

Answer 3

pure notice recording act

Question 4

TX installment land contract

Answer 4

called a contract for deed (seller keeps title until loan paid)

Question 5

residential foreclosure procedure

Answer 5

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.

Question 6

When is notice to junior interests necessary for foreclosure?

Answer 6

if there is a judicial foreclosure sale, not power of sale foreclosure.

Question 7

Deficiency judgment

Answer 7

If proper process is utilized, limited to difference between outstanding debt and FMV at time of foreclosure (not between debt and sale price)

Question 8

4 requirements to perfect statutory mechanics’ and materialsmen’s lien. The affidavit must:

Answer 8

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.

Question 9

when is MML perfected?

Answer 9

date of commencement of construction of improvements or delivery of materials, not date of recording

Question 10

statutory protections for contracts for deed

Answer 10

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.

Question 11

Options to seller under contract for deed if there’s the usual forfeiture clause:

Answer 11

cancel K, keep money, and take possession.

Question 12

transfer of mortgage by mortgagee without note is…

Answer 12

void

Question 13

water rights for rivers and lakes

Answer 13

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.

Question 14

water rights for ground water

Answer 14

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.

Question 15

water rights for surface water

Answer 15

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.

Question 16

Rural homestead

Answer 16

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).

Question 17

Only 8 liens can validly attach to homestead (acronym–PTMORHRR: payday TMORow helps reap righteousness):

Answer 17

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.

Question 18

required notice for ending periodic tenancy

Answer 18

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.

Question 19

landlord duties in residential leases

Answer 19

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.

Question 20

landlord duties in commercial leases

Answer 20

implied warranty of suitability covering latent defects in the essential facilities of the leased property. May be waived.

Question 21

tenant right to assign/sublet

Answer 21

by statute, there is no right unless LL gives permission.

Question 22

prescriptive easement time period

Answer 22

10 years (20 for MBE)

Question 23

transferability of easement in gross

Answer 23

can’t be transferred unless the language of the easement says so. The one exception is the conservation easement.

Question 24

adverse possession

Answer 24

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

Question 25

Disabilities that will toll the limitations statute for adverse possession

Answer 25

being a minor, of unsound mind, or armed forces during time of war. Note: being in jail does not count

Question 26

who has risk of loss during executory period (after contract of sale, before closing)?

Answer 26

the person in possession

Question 27

Warranties in sale of new home

Answer 27

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.

Question 28

Seller duty to disclose before sales contract

Answer 28

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).

Question 29

Life tenant duties

Answer 29

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.

Question 30

reimbursement to a co-tenant in a tenancy in common

Answer 30

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.

Question 31

If rental premises are totally unusable for residential purposes

Answer 31

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.

Question 32

Security deposit

Answer 32

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.

Question 33

If premises totally unusable for residential purposes and casualty did not result from T’s negligence

Answer 33

either LL or T may terminate the lease by giving written notice any time prior to completion of repairs. T gets pro rata refund.

Question 34

Residential T’s remedies

Answer 34

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

Question 35

establishment of homestead

Answer 35

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.

Question 36

Covenant that runs with land

Answer 36

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

Question 37

Required notice from purchaser of mineral/royalty interest who sends offer by mail and encloses an instrument of conveyance and payment for the interest

Answer 37

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)

Question 38

general warranty deed

Answer 38

contains a general warranty clause: obligates grantor to indemnify grantee for loss caused by any claim against title.

Question 39

special warranty clause

Answer 39

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.

Question 40

mandatory requirements for a valid deed

requirements to be recordable in the real property records of the county where the property is located

Answer 40

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)