Matthew's Texas Real Property Distinctions to MultiState Flashcards

A right of entry AFTER condition broken is transferable

• There are NO statutes in Texas limiting the permissible duration of possbilities of reverter and rights of entry to a certain number of years, nor are there statutes requiring re-recording of such future interests.
• Neither the possibility of reverter nor the right of reentry are subject to the Rule Against Perpetuities because they are reversionary interests in the grantor

Texas is a community property state

Texas has ABOLISHED the rule of destructibility of contingent remainders

Texas has ABOLISHED the rule

Texas has ABOLISHED this rule and follows the majority rule that it applies to inter vivos transfers as a rule of construction only

Effective Sept. 1, 1969 Texas has adopted the CY PRES approach. It applies ONLY to inter vivios instruments and will taking effect after its effective date

• NOT recognized in Texas
• Such an instrument is treated as a conveyance by the mortgagor as payment of the debt, and does NOT extinguish subordinate liens
• If the status of title is unacceptable to the mortgagee, the mortgagee may VOID the deed within 4 YEARS of its acceptance based upon unknown intervening liens and proceed with a foreclosure sale under the deed of trust
• Conditions which MUST exist to void the deed
(i) Debtor fails to disclose to the holder of the debt a lien or other encumbrance on the property before executing the deed conveying the property to the holder of the debt in satisfaction of the debt
(ii) The holder of the debt has NO personal knowledge of the undisclosed lien or encumbrance on the property
• A mortgagee’s election to void a “deed in lieu” does NOT affect or impair the priority of the deed of trust

• Doctrine of Survivorship has been ABOLISHED by statute in Texas. Holders of an undivided interest in Texas are co-tenants, tenants in common, or co-owners.
• Nothing, however, prevents parties from contracting among themselves that the property in question should pass to and vest in the survivor as at common law.
• These types of agreements must follow certain statutory restrictions when undertaken between husband and wife.

This common law estate is unknown and NOT recognized in Texas because of its statutory community property laws.

Texas does NOT restrict the number of years for which a leasehold estate may be created.

• The landlord MUST provide a hold-over tenant with at least 3 days' written notice to vacate the premises before filing a forcible detainer suit.
• The ONLY issue to be determined in the suit (filed in the Justice Court of the precinct where the property is located) is who is entitled to possess the property.

• The landlord MUST give the hold-over tenant a written demand to vacate the premises that states if the tenant does not vacate before the 11th day after receipt of the notice, the landlord may recover fees if a suit is filed.
• The demand must be sent by registered mail, return receipt requested, at least 10 days prior to filing suit
If the same procedure is followed but the tenant prevails, she is entitled to recover attorney's fees

Texas statutes do NOT provide for collection of double rent for a willful holding over by a tenant.

In Texas, the tenant has the duty to keep the premises in good repair unless the lease provides otherwise.

Tenant may terminate his lease if the premises are rendered totally untenantable

A landlord is presumed to have acted in bad faith in retaining a security deposit under a commerical lease if the landlord fails to return the security deposit or provide a written description and itemized list of dedecuctions to the tenant within 60 days after the tenant surrenders possession

• Landlord must refund a tenant’s security deposit within 60 days after the tenant surrenders the premises and provides notice of the tenant’s forwarding address to the landlord or the landlord’s agent
• A commercial landlord is NOT obligated to return a tenant’s security deposit until the tenant gives the landlord a written statement of the tenant’s forwarding address.
• Landlord may make deductions from the security deposit if there are damages or charges for which the tenant is legally liable. Landlord MUST give the tenant a written description and itemized list of all of those deductions UNLESS the tenant owes rent when the premises are surrendered

A landlord may intentionally prevent a tenant who is delinquint in paying rent from entering the leased premises by changing the locks.

Landlord must place a written notice on the tenant's front door stating the name and address and phone number of the individual or company from which the new key may be obtained.

A residential landlord has a right ONLY if it is expressly provided for in the lease.
BEFORE the landlord may change the locks, the tenant must be delinquent in paying all or part of the rent and the landlord must provide the tenant with notice of
(1) earliest date of chaning the locks
(2) the name and address and phone number of the individual or company from which the new key may be obtained
(3) the amount of rent the tenant must pay to prevent the chaning of the locks; AND
(4) In underlined and bold print the tenant's right to receive a new key at ANY HOUR, REGARDLESS OF WHETHER THE TENANT PAYS THE DELINQUINT RENT.

May either recover possession of the premises or terminate the lease AND recover from the landlord (1) 1 month's rent plus $1,000, (2) actual damages, (3) reasonable attorney's fees, AND (4) court costs.

• Any commercial landlord has a statutory landlord’s lien created automatically
• A person who leases or rents all or part of a building for nonresidential use has a preference lien on the property of the tenant or subtenant in the building for rent that is due and for rent that is to become due during the current 12 month period succeeding the date of the beginning of the rental agreement
• Lien is UNENFORCEABLE for rent that is MORE than 6 MONTHS past due UNLESS the landlord has filed a lien statement with the county clerk of the county the building is located

• The landlord may apply for a distress warrant to enforce the lien ONLY if the tenant
(i) Owes Rent
(ii) About to abandon the building
(iii) About to remove the tenant’s property from the building
• Landlord must post bond

• In the case of a condition that results from an insured casualty loss, the period for repair does NOT begin until the landlord receives the insurance proceeds
• If the rental premises are totally unusable for residential purposes and the casualty did not result from the tenant’s negligence, either the landlord OR tenant may terminate the rental agreement at ANY TIME PRIOR to the completion of repairs by giving WRITTEN NOTICE.

• There is NO implied WARRANTY of habitability; HOWEVER there is a STATUTORY requirement that landlords repair conditions that materially affect the physical health or safety of an ordinary tenant
• The Texas Supreme Court has recognized the implied warranty was subject to landlords in a RESIDENTIAL rental agreement after Sept. 1, 1979,
• In 1988 the Texas Supreme Court also recognized an implied warranty in COMMERICAL leases. It is intended to cover LATENT DEFECFTS in the essential facilities of the leased premises.

(1) Termiante the lease
(2) Repair the condition and deduct the costs from subsequent rent payments only under ceratin stated conditions;
(3) If not repaired or remedied within 7 days of notice of intent to repair, seek certain judicial remedies as set out in the statute

Texas statute provides that at tenant may NOT sublease or rent leased premises during the term of the lease without first obtaining the landlord's consent.

• Texas has a 10 year period

• CANNOT be transferred unless the language of the easement says so.
• EXCEPTION: conservation easements can be transferred

• Color of Title--is possessor has color of title and has only narrow specified defects in title 3 YEARS (Very hard to meet)
• Color of Title AND Pays Taxes--possessor must possess for 5 YEARS.
• Bare Possession--if the possessor had no color of title (i.e. naked trespasser) there is a 10 YEAR possession; however posession is LIMITED to 160 ACRES (unless a larger area is fenced in)
• If possessor paid the taxes for the entire period, was on the property under a color of title, and true owner was under a disability 25 YEARS.

• A consecutive chain of transfers to the person in possession that is not regular
• A person claiming under the 3 year Adverse Possession statute must prove each link in a regular chain of transfers.

• The maximum tolling period for disabilities in Texas is 25 YEARS; after that time the clock starts to run EVEN IF the owner is still under a disability
• Texas ONLY recognizes 2 disabilities:
(1) Being a Minor
(2) Being in the Armed Forces during a time of war

In Texas the risk of loss is on the person in possession at the time of the loss.

• In Texas the doctrine of estoppel by deed is called doctrine of after-acquired title
• Estoppel by Deed--If A deeds property to B that A does not own, and then A later acquires title, then B will get title because grantor gave an implied covenant that title would be transferred to grantee.
BUT, if grantor transfers to a BFP after getting title, then the original grantee loses and CANNOT rely on estoppel by deed.

• A deed can be recorded if it is signed and the signature is notarized OR if the deed is signed by the grantor and at least 2 witnesses
• Texas has a NOTICE RECORDING statute

Debtor signs a contract promising to make payment and seller keeps title until loan is paid off

• A validly perfected mechanics' and materialmen's lien (MML) can protect workers and suppliers to workers on real property; has priority over mortgages and other liens
• Requirements to perfect MML
(1) Affidavit must be filed with county clerk where property is located no later than 15th day of the 4th calendar month after the day the indebtedness accrues
(2) Affidavit must list the amount of the claim, the name and address of all relevant persons, a general statement of work done and material furnished
(3) Affidavit must give a legal description of the property sought to be charged with the lien
(4) Copy of the affidavit must be sent by certified or registered mail to the owner within 5 days of its filing.
• MMLs RELATE BACK to the commencement of construction or delivery of materials to the land and a validly perfected lien is effect as of that date NOT the date of recording the affidavit lien

• Fund trapping is the ability of a derivative claimant (subcontractor) to trap funds in the hands of an owner of property for labor or materials which the claimant has furnished to the property and for which he has not been paid.
• If notice is timely and properly given to the owner, the owner must retain the funds until the time period for filing a mechanic’s lien affidavit has passed or until the lien claim has been satisfied or released
• An owner who fails to withhold payment from the contractor and releases the funds in spite of the notice is personally liable and her property is subject to a lien for such amounts paid.

• Are limited to the difference between the debt and the fair market value of the property
• MBE--difference between the debt and the sale price

• Sellers have to give buyers detailed notice of a prospective forfeiture
• Buyers have a statutory 60 day period to cure the default

• Texas follows the Prior Approriation--anyone, not just the riparian owner, who makes beneficial use of the water, has the right to continue to use it, and that right is protected from those who come later, as long as the use continues
• Priority in time determines all rights

• Texas 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
• Limitations
(1) Malicious
(2) Waste the water
(3) Susidence of neighbor's

• English Rule of Capture
• Owner may exercise absolute ownership over groundwater by drilling a well and capturing it.
• Part of the surface estate

Natural Flow Theory--courts allows reasonable steps to deal with flood water

• Texas homestead is a place of business or a residence secured against the claims of creditors
• Available to any family or any single adult
• Homestead Created by
(1) Intent to have it as homestead AND
(2) Either actually occupy it OR take such acts of preparation that the court could conclude that you were about to occupy it

• Rural--CANNOT be more than 200 acres for a family, or 100 acres for a single person, acres do NOT have to be contiguous, but all have to be used as a homestead
• Urban--residential or business (a place to exercise a business or a calling for a family or single adult) which can be combine use in one homestead. Can be a single lot or lots adding up to NO more than 10 acres, if more than one lot then lots must be continguous

• Taxes--homestead is ALWAYS vulnerable to sale to pay unpaid taxes on the property
• Loans--tied to the property--those having something to do with buying, financing, or improving the property, or with equity in the property are always outside the homestead protection and the homestead can be sold to satisfy the loan

If a homestead is owned by husband and wife NEITHER can sell NOR encumber it without the signature of the other

When a deed of trust gives the trustee the “power of sale,” the foreclosure can proceed as a non-judicial foreclosure sale by means of public auction

• Giving NOTICE of the proposed foreclosure sale at least 21 DAYS before the sale by
(i) Posting written notice, designating county in which the property will be sold, at the courthouse door of each county where the property is located
(ii) Filing a copy of the notice in the office of the county clerk where the property is located
(iii) Sending written notice by certified mail to each debtor, which must contain name and street address of trustee and indicate the earliest time the sale could occur
• Foreclosure sale must be public at the county courthouse where the real estate is located between 10 and 4 on the first Tuesday of any month following the 21 day notice
• Sale must begin at time stated in notice of sale or no later than 3 hours after that time
• Occur in the area designated by the commissioner court