The Texas Property Code requires that the landlord must make repairs to conditions that materially affect the health and safety of an ordinary tenant. The
statutes provided in Chapter 92 of the Texas Property Code provide many specific provisions to guide the landlord and tenant with certainty in the process that does not exist under the common law
Waiver: First, the statutory warranty can ONLY be waived in one narrowly defined statutory provision. If a landlord owns only one rental dwelling, the property is not in need of repair at the beginning of the leasehold, the landlord does not know or have reason to know of any problems that would occur during the lease or an extension or renewal, and the lease is in writing, with a provision that is in bold type or underlined that is clearly, voluntarily, and knowingly made for consideration then the tenant can be required to make and pay for all repairs to the leased premises.
Notice: To avail themselves of the available remedies, the tenant must send a written notice to the landlord
by certified mail return receipt requested, by registered mail, or by another mail service that allows tracking of delivery from the US Postal Service or a private delivery service. The notice must be given to the person to whom or the place where the tenant's rent is normally paid, and the tenant must be current in the payment of rent. After providing notice, the landlord must be given a reasonable time to repair/respond.
Remedies: The tenant has three different remedies available:
• Choose to terminate the lease and obtain judicial
• Choose to stay and sue for judicial remedies include damages and an order for the landlord to make repairs; or
• Choose the repair and deduct remedy which allows the tenant under limited circumstances to make repairs and deduct the cost from the next month's rent if specific procedures are followed.
None of these provisions apply to the commercial context. Texas has an implied warranty of suitability (similar to the common law implied warranty of habitability), and it can be waived.
Defects in the Record Chain of Title
These defects include variations in the property description, an improperly executed deed, or evidence
that a prior grantor lacked capacity to convey the
The Presence of Encumbrances
(No easements, no restrictive covenants, no mortgages, no options, etc., that are not mentioned in the contract for the buyer to take subject to).
Notes: The presence of zoning ordinances does not
make title unmarketable. However, a violation of a
zoning ordinance will make title unmarketable.
But, when comparing the violation of zoning ordinances to a violation of housing or building codes, the result is different. The violation of a housing or building code generally does NOT cause title to be unmarketable.
A mortgage on the property is not an encumbrance
that will impact marketable title IF the mortgage is to
be paid out of the proceeds of the sale.
Because the Deed of Trust is the preferred security interest, the nonjudicial foreclosure is the typical sale used for foreclosures. There are specific statutory criteria for conducting a valid nonjudicial sale.
If residential property, the debtor must be given notice
of default with time to cure. By statute the minimum time
to cure is 20 days. If not cured, the debtor must also be given a notice of sale at least 21 days before the sale.
The notice of sale must give the date and time of the
sale, the notice must be posted at the courthouse,filed with the county clerk, and if the clerk's office maintains
a website, available on the website. Both the notice of
sale and notice of default must be sent to all debtors on the note by certified mail return receipt requested.
A valid sale can only take place on the first Tuesday of the month between the hours of 10:00 am and 4:00 pm. If the first Tuesday is January 1 or July 4, then the sale will occur on the first Wednesday of the month between the hours of 10:00 am and 4:00 pm.
The court is not involved in the process. The Trustee provides the notices, conducts the sale, and executes a trustee's deed at the conclusion of the sale.
Every requirement has to be met or the sale is VOID!
Note - if property falls across multiple counties - have to file notice of sale with all counties even though only sale in one county!