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Texas Essays - Texas Real Property
Terms in this set (62)
Fee Simple Presumed
1. In Texas, conveyances that are ambiguous are considered fee simple by default.
Texas Distinction Life Estate
1. no particular form of words is necessary to create a life estate
2. When the construction of a will devising property to a life estate is doubtful and there are children of the testator to consider, the courts lean toward giving the parent a life estate, and making the offspring the remaindermen
1. DOES NOT automatically include the right of survivorship
2. when the co-tenant dies, his interest does not pass to the surviving co-tenants, but passed by will or intestacy.
Tenancy by the Entirety
1. Texas does not acknowledge this concurrent estate, because Texas is a community property state.
Possibility of reverter
1. Texas has not enacted a statute that limits the duration of the possibility of reverter, nor is there a requirement to rerecord such future interests.
2. The possibility of reverter is not subject to the Rule Against Perpetuities.
Right of Re-entry
1. In Texas, a right of reentry is transferable, and there are no statutes that limit the duration of a right of reentry.
2. The right of reentry is not subject to the Rule Against Perpetuities.
Texas Point of Law: The Rule in Shelley's Case Abolished
1. The Rule in Shelley's Case (the rule against remainders in the grantee's heirs) was abolished in Texas in 1964, but it applies to conveyances made before that date.
2. The parties now take the present and future interests according to the language in the deed.
Texas Point of Law: Doctrine of Worthier Title Abolished
Texas has abolished the Doctrine of Worthier Title against remainders in the grantor's heirs. Tex. Prop. Code § 5.042.
Texas Distinction: Cy Pres Doctrine
1. In Texas, both perpetual trusts and trusts for an indefinite duration violate the Rule Against Perpetuities and are void.
2. However, the Rule Against Perpetuities does not apply to charitable trusts.
Texas Distinction: Damage Resulting in Inhabitability
1. If the damage causes complete inhabitability (e.g., structural damage due to a fire, flood, or other disaster) and the tenant, his family, a guest, or an invitee did not cause such damage, then Texas law allows either the landlord or tenant to terminate the lease by giving written notice to the other party before repairs are completed.
2. The tenant may receive a pro rata refund of rent and lawful security deposit.
Texas Distinction: Landlord's Remedies
1. In Texas, if the landlord provides proper written notice to the tenant about the illegality of withholding rent or a proposed repair, and the tenant withholds rent or causes the repairs to be performed, then the landlord may recover one month's rent, plus $500
Texas distinction: Lockout
1. Texas statutes allow for a "lock out" of a tenant (by changing the locks on the premises) when the tenant fails to pay rent.
2. The landlord's rights differ between commercial and residential leases. For commercial leases, the landlord may lock out a tenant after placing written notice on the tenant's front door with information regarding where a new key may be obtained after back rent is paid.
3. The right to lock out a residential tenant must be expressly provided for in the lease. The landlord must provide the residential tenant with notice and give the tenant the opportunity to obtain a new key at any hour, regardless of whether back rent has been paid.
Texas Distinction: Wrongful Lockout (Residential)
When a landlord has wrongfully locked out a residential tenant, the tenant may recover:
i) Possession of the property (or terminate the lease); and
ii) One month's rent plus $1,000, actual damages, court costs, and attorney's fees, less any delinquent rent or other monies owed to the landlord.
Texas : Eviction
1. Before evicting a holdover tenant, a landlord must provide the tenant with at least three days' notice to vacate the property.
2. Suits are filed in the precinct where the property is located.
3.The landlord may be able to recover attorneys' fees if proper notice has been given to the tenant
1. A commercial landlord has a preference lien on the property of the tenant 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 or an anniversary of that date
2. The lien is unenforceable if the rent is more than six months past due, unless the landlord files a lien statement with the county clerk in which the building is located.
3. The landlord may apply for a distress warrant if the tenant (i) owes rent, (ii) is about to abandon the building, or (iii) is about to remove the tenant's property from the building.
Texas: Retention of Security Deposit (Commercial)
1. Generally, a commercial landlord must refund a tenant's security deposit within 60 days after the tenant surrenders the premises and provides notice to the landlord of the tenant's forwarding address
2. A commercial landlord may deduct from the deposit damages and charges for which the tenant is liable or from breach of the lease. If the landlord retains all or part of a security deposit, then the landlord must provide the tenant with a written description and list of all deductions.
3. However, the landlord is not required to do so if (i) the tenant owes rent when the tenant surrenders possession of the premises, and (ii) no controversy exists concerning the amount of rent owed.
In Texas, there is no limit on the amount of security deposit and landlords are not required to pay interest on the deposits that are held.
Texas: Retention of Security Deposit ( Residential)
1. A residential landlord must return the tenant's security deposit within 30 days after the tenant surrenders the premises.
2. The landlord may deduct any damages or charges for which the tenant is liable under the terms of the lease, or because the tenant breached the lease.
3. The landlord may not retain any of the deposit to cover normal wear and tear, and must itemize and describe in writing all of the deductions. No itemized list is required, however, if the tenant owed rent when he surrendered possession and there is no controversy as to how much rent is owed
In Texas, there is no limit on the amount of security deposit and landlords are not required to pay interest on the deposits that are held.
1. a landlord has a duty to make reasonable efforts to mitigate damages when a tenant breaches the lease and abandons the property
2. a lease provision that waives a right or exempts a landlord from this duty to mitigate is void.
3. Although it is the landlord's duty to mitigate damages, the tenant has the burden of proving that the landlord has failed to mitigate damages (or has mitigated) and the amount by which the landlord reduced or could have reduced his damages
Remedies for Anticipatory Breach
The landlord may
(i) maintain the lease and sue for rent as it becomes due, (ii) treat the breach as an anticipatory repudiation, repossess, and sue for the present value of future rentals reduced by the reasonable cash market value of the property for the remainder of the lease term,
(iii) treat the breach as anticipatory, repossess, release the property, and sue the tenant for the difference between the contractual rent and the amount received from the new tenant, or
(iv) declare the lease forfeited (if the lease so provides) and relieve the tenant of liability for future rent.
Texas Distinction: No Double Rent for Holdover Tenant
Texas law does not allow landlords to collect double rent for a willful tenant holdover.
Texas Distinction: Warranty of Habitability
There is no common law implied warranty of habitability in Texas; there is a statutory warranty that requires landlords to repair conditions that materially affect the physical health or safety of an ordinary tenant. This warranty is almost impossible to waive. The statute provides a very limited exception.
in addition to providing a safe and sanitary dwelling a landlord in Texas must also make a diligent effort to repair a condition, if:
(i) The tenant gives proper notice of the condition;
ii) The tenant is not delinquent on his rent at the time notice is given; and
iii) The condition materially affects the health and safety of an ordinary tenant.
If the landlord breaches, then the tenant may
1) terminate the lease;
2) sue the landlord; OR
3) stay and repair and deduct the cost from the next month's rent
Texas Distinction: Retaliatory Eviction
Under Texas law, a landlord may not retaliate against a tenant because the tenant establishes, attempts to establish, or participates in a tenant organization
Texas Distinction: Duty to Provide Copy of Lease
1. Within three business days after the lease agreement is signed, the landlord is required to provide a copy of the lease agreement to at least one tenant who is a party to the lease.
2. Failure to provide a copy of the lease prevents a landlord from enforcing the lease for grounds other than non-payment of rent until a copy of the lease is provided. Failure to provide a copy of the lease does not invalidate the lease.
Texas Distinction: Disclaimer and Waiver of Implied Warranties for New Homes
1. The implied warranty of good and workmanlike construction of a new home may not be disclaimed, but may be superseded by an express warranty if the parties' agreement sufficiently describes the manner, performance or quality of the services
Texas Distinction: Prior Approval Required to Sublet
1. In Texas, a tenant may not assign or sublet the leasehold to another person without the prior consent of the landlord.
2. Although a builder may not generally waive the implied warranty of habitability, because the warranty only applies to latent defects, a purchaser who buys the house with express and full knowledge of any specific defects has waived the warranty as to those defects
Texas Point of Law: Uniform Vendor and Purchaser Risk Act
1. Texas has adopted the Uniform Vendor and Purchaser Risk Act
2 The act states that if the property is destroyed or uninhabitable before title or possession passes, then the seller may not enforce the contract and the purchaser may recover any portion of the contract price paid. If title has passed, the purchaser may not recover any monies paid and must pay the contract price.
Texas Distinction: Seller's Disclosure of Property Condition
1. A seller of residential real property comprising not more than one dwelling unit located in Texas must give the purchaser of the property a written Seller's Disclosure of Property Condition. The disclosure must be completed to the best of seller's belief and knowledge as of the date the notice is completed and must be signed by the seller.
Texas Distinction: Adverse Possession
1. In Texas, adverse possession is terminated when the owner files a lawsuit to recover possession of his land.
Texas Distinction: Continuous for 25 Years
1. In Texas, possession must be continuous and uninterrupted for 25 years.
2. A claimant must show adverse possession by (i) openly exercising dominion over the property or (ii) asserting ownership under a recorded instrument for the required period
Texas: 10 year exception
A claimant must demonstrate:
(i) possession of the land
(ii) cultivation, use, or enjoyment thereof
(iii) an adverse or hostile claim
(iv) an inclusive dominion over the property and appropriation of it for his own use and benefit
(v) for the statutory period
Texas: 5 year exception
A claimant :
i) Has cultivated, used, or enjoyed the property;
ii) Has paid taxes; and
iii) Is claiming rights to the property under a deed, unless the deed is forged or executed under a forged power of attorney.
Texas: 3 year exception
A person must bring an action to recover real property held by another in peaceable and adverse possession when there is title or color of title that seems irregular or may have been improperly recorded during a three-year statute of limitations period.
Texas Point of Law: Disability of the Owner
1. The adverse possession statutes of three, five, and ten years do not begin to run if the owner of the property is disabled either at the time that the adverse possession commences or at the time that the property vests.
Texas Distinction: Strips and Gores Doctrine
1. The doctrine states that when a deed conveys land abutting a street, public highway, or railroad right-of-way, title to the center of the street, public highway, or railroad right-of-way also passes by the deed, unless the grantor explicitly reserves with plain and specific language in the deed a fee in the narrow strip of land adjoining the conveyed land.
2. does not apply if the grantor owns land abutting both sides of the strip. In addition, the doctrine does not apply if the strip is larger and more valuable than the conveyed tract.
Texas Distinction: Recording Requirements
In Texas, an instrument conveying real property may not be recorded unless it is signed and acknowledged or sworn to by the grantor:
i) In the presence of two or more credible subscribing witnesses; or
ii) Before and certified by an officer authorized to take acknowledgements or oaths.
Texas Distinction: Correction Instruments
1. correction instruments are allowed to correct an ambiguity or error in a recorded original instrument of conveyance to transfer real property or an interest in real property
2. A person who has personal knowledge of facts relevant to the correction of a recorded original instrument may execute a correction instrument to make a nonmaterial change that results from a clerical error
3. The parties to the original transaction or the parties' heirs, successors, or assigns may execute a correction instrument to make a material correction to the recorded original instrument of conveyance.
Texas Point of Law: Notice Jurisdiction
1. Texas is a pure notice jurisdiction
2. According to the statute, an instrument that is properly recorded in the proper county is: (1) notice to all persons of the existence of the instrument, and (2) subject to inspection by the public.
Texas Distinction: Creditors
The Texas recording statute explicitly protects creditors without notice of prior conveyances.
Texas Point of Law: Purchaser Protection
1. the seller must give the defaulting purchaser a prescribed statutory notice before enforcing a forfeiture of the purchaser's interest.
2. If the purchaser defaults after paying 40% or more of the amount due, or the equivalent of 48 monthly payments, then the seller is granted the power to sell, through a trustee designated by the seller, the purchaser's interest in the property.
3. The seller may not enforce the remedy of rescission or of forfeiture and acceleration
Texas Distinction: Prescription Period
In Texas, the period of time necessary to establish a prescriptive easement is 10 years.
Texas Distinction: Discriminatory Provisions
In Texas, if a restriction that affects real property, or a provision in a deed that conveys real property or an interest in real property, whether express or incorporated by reference, prohibits the use by or the sale, lease, or transfer to a person because of race, color, religion, or national origin, then the provision or restriction is void.
Texas Distinction: Water Rights Adjudication Act
1. Texas used the doctrine of riparian rights until 1895. The state continued to recognize common-law riparian rights in land granted from the sovereign until 1913, when it passed an amended version of the Irrigation Act, which ceased to recognize riparian rights that were not already vested and prohibited their creation by state land patents issued after July 1, 1895. That provision of the 1913 act remains part of the Texas Water Code today.
2.For a landowner to establish that his land is riparian, he must be able to trace his chain of title back to a grant from the sovereign between 1823 and 1895.
3. The Water Rights Adjudication Act is now the exclusive means by which water rights may be recognized and, in the absence of a certificate of adjudication, Texas courts do not have the power to grant in equity certain water rights not otherwise recognized by law. Assuming a landowner can establish a proper chain of title and/or certificate of adjudication, there are also physical attributes that must be present for the land to be considered riparian or littoral. Most clearly, the land must be adjacent to the water. Additionally, the adjacent water must be a natural body. Finally, riparian lands attach to the "normal flow" of the waters, as opposed to floodwaters.
The Texas Constitution extended the meaning of the "the homestead of a family" to embrace not only the home or residence of the family, but also the place where the head of the family could exercise his calling or business.
Qualifying as a Homestead
1. there must be a present enforceable right, plus the right to possession of the property ( can even be a life estate)
2. claimant must have the intent to occupy the property as a homestead and must make overt acts of occupation and dedication indicating such intention
A rural homestead consists of not more than:
1. 200 acres for a family; or
2. 100 acres for a single adult.
A homestead can be more than one parcels, as long as the combined total does not exceed the above acerage
An urban homestead consists of not more than ten acres of one or more contiguous lots.
A homestead is urban if at the time the designation is made, the property is:
i) Located within city limits, its extraterritorial jurisdiction, or a platted subdivision; and
ii) Served by municipal police, fire protection, and at least three of either electric, natural gas, sewer, storm sewer, or water services.
There cannot be a mixed homestead (i.e., part urban and part rural) and the two types of homesteads cannot exist simultaneously
1. In order to qualify as a homestead under Texas law, a residence must rest on the land and have a requisite degree of physical permanency, immobility, and attachment to fixed realty.
2. Personal property attached to the land (a fixture) is also considered part of the homestead. However, personal property must be a fixture
1. An urban homestead may also be used as a business, so long as it is on the same lot as or a lot contiguous to the homestead and does not exceed ten acres
2. In order to show that a non-contiguous property is part of a rural homestead, the owner must show that the second tract, on which he does not live, is necessary to the use and enjoyment of the tract on which he does live—as a home
Legal Effects of Homestead
Protects the homestead of a family or a single adult from forced sale, except with regard to:
1. If purchase money is due
2. payments of any taxes that are assessed and levied on the property
3. refinances of liens
4. loans made in connection with improvements on the property, provided that the work and material used in constructing the new improvements were contracted for in writing and with the consent of both spouses in the case of a family homestead.
5. home equity loans
6. reverse mortgages
7. Owelty of partition
Notice required to terminate a
By statute, the required notice to end any periodic tenancy is 30 days and the notice does not have to be given so that it will end on a period ending date. The statute allows for proration of rent.
Implied warranty of suitability
Applies only to commercial leases
covers the latent defects in the essential facilities of the leased property. This implied warranty may be waived by agreement of the parties.
Covenant of Quiet Enjoyment
DOES NOT APPLY TO PHYSICAL REPAIR ISSUES
The statutory warranty supersedes the common law. However, the covenant of quiet enjoyment can still be used for non-physical repair issues like noisy neighbors and criminal activity by other tenants.
Implied easement by prior use
If an implied easement by prior use is impliedly reserved, the use must be
for the continued enjoyment of the now dominant estate. If the implied easement by prior use is impliedly granted then only a reasonable necessity is required.
Implied easement by Necessity
As of the Texas Supreme Court's decision in Hamrick v. Ward, the court held that implied easement by prior use is not available for landlocked property. In that instance, the implied easement by necessity is the means to obtain access to the landlocked parcel.
Transferring an Easement in Gross
No easement in gross can be transferred unless the language of the easement says so. The one exception is the conservation easement because the language of the statute creating such easements allows for transfers.
Texas Distinction: Irrevocable License
License plus money spent on property furthering the license
In Texas the irrevocable license is called an
easement by estoppel
"Bare Possession" statute
If possessor is just in bare possession of property with no color of title (i.e. naked trespasser):
but possession is limited to
(unless larger area is fenced in). However, if the possessor has a "deed" that doesn't satisfy the more stringent 3 or 5 year requirements, the deed can help acquire title to whatever land is described in the deed even if more than 160 acres and even if the land is not fenced in.
"Title" or "Color of Title" statute
if possessor is there under the color of title and has only narrow specified defects in the title:
Note: very hard test to satisfy - so dont use it
"Duly Registered Deed and Payment of Taxes"
If possessor is there under a recorded deed that is otherwise defective and pays all taxes:
Required elements to achieve adverse possession
- Hostile (being on the property with no right to be there)
- Exclusive (X must be excluding others from possessing the property)
- Lasting (possession must last for the statutory period - 10 years)
- Uninterrupted (must be the kind of continuous use an ordinary owner would make)
- Visible (i.e. open and notorious)
- Actual (Must actually possess the land to get title - with 2 exceptions: constructive adverse possession and leasing of land not owned)
There is a need for the possessor to "intend to appropriate the land as one's own." If the adverse possessor's state of mind is that "I wasn't trying to get anything that isn't mine" then the adverse possession claim fails.
Disability and Limitations Tolling
The maximum tolling period for disabilities in Texas is
No matter what, the possessor can acquire title after 25 years.
There are 3 disabilities in Texas:
2) unsound mind
3) Active Duty during time of war
The owner being in jail does not count in Texas.
Transfer on Death Deed
An instrument the owner of real property can use to designate a transferee to receive title to property on the owner's death without the necessity of probate. The Transfer on Death Deed does not affect the transferor owner's rights, and the owner retains the power to transfer or encumber the property or revoke the deed. NO delivery of this deed is required; however, the deed must be recorded to be valid.
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