Real Estate Law
The law of real estate deals with land, the structures which sit on them, and the rights of the people to own, occupy and use those. This branch of the law as we know it today was imported from England at the time of the founding of both the United States and the Republic of Texas. All real estate transactions which involve title to property must be written down and you can actually see some of the warrants from the King of Spain in some of the documents recorded in the older counties.
Deed - The deed is the paper which says who owns a particular piece of land. At a minimum, it will have the name of the “grantor,” the seller; the “grantee,” the buyer; “granting” ( selling) language; and a description of the property. Each deed is recorded in the Official Public Records of Real Property of the county in which the property is located. This lets the whole world know who owns what, and everyone is bound by the law to know this.
Deed of Trust - A Deed of Trust is the instrument which gives a lender a security interest in another’s land. This, when combined with a promissory note or loan, is what many refer to as a mortgage. Its purpose is to allow for the lender to have its “trustee” sell the property and distribute the proceeds of the sale, if the loan is not paid.
Release of Lien - When a Note and Deed of Trust have been paid in full, this is the document that must be prepared and recorded to do away with the lien.
Lis Pendens and Release of Lis Pendens - If a party is in the midst of a lawsuit and is concerned that the person being sued is going to get rid of a tract of land which could serve as the source for money to be paid at the conclusion of a successful lawsuit, then a Lis Pendens can be filed as some protection. Once the lawsuit has concluded, then a Release of Lis Pendens must be recorded.
Abstract of Judgment and Release of Judgment - If a litigant obtains a judgment, that judgment needs to be abstracted and then recorded in the Real Property Records of each county in which the person against whom the judgment was granted owns real property. Once the judgment has been paid, then a Release of Judgment must be recorded in the same counties. These abstracts, to remain valid after then first ten (10) years, must be renewed.
Foreclosure - This is the actual act of selling the property which is the collateral for a loan at public auction. In Texas, these sales are conducted on the steps of the court house of the county in which the property is situated on the first Tuesday of every month between the hours of 10:00 am and 4:00 pm. This includes January 1 and July 4, if the calendars come around correctly. To do a foreclosure, there are steps of notice which must be followed which are designed to give the property owner a chance to cure his/her loan problems, and to give the world at large notice of the sale so a fair price can be brought at the auction.
Lease Agreement - There are several types of lease agreements these days. They can range from the typical residential lease agreement, to commercial leases. There are very specific types of leases for oil production, grazing rights, cell phone towers and ground pads. There are not many laws dictating the terms of these leases, other than the laws of common sense.
Contract for Deed - While not the preferred method , there are times when parties prefer to enter into a contract for deed in lieu of the Note/Deed and Deed of Trust route. This happens most often when the Buyer has bad credit and the Seller is willing to fund the loan but is unwilling to have to go through the expense of a foreclosure in the event of default or when the property still has a mortgage and the Buyer’s credit is not good enough for the Buyer to be able to obtain a loan in an amount sufficient to pay off the existing mortgage. The record owner of the property remains the record owner, but the buyer acquires rights to the property.
Eviction/Forcible Detainer - When a lease is broken, or, if after a foreclosure the former owner refuses to vacate the property, eviction/forcible detainer this is the legal process of regaining possession of the leased or foreclosed upon property. All evictions in Texas start in the Justice of the Peace Court (JP)for the area where the property is located. It makes no difference whether it is a studio apartment or Reliant Stadium , all forcible detainers (that is the legal name of the lawsuit) start in the JP courts. The tenant/former owner and all occupants are given notice to vacate the premises either within three or ten days of the posting of the notice. If the tenant/former owner remains on the property after the date on the notice to vacate, then a case (a forcible detainer) is filed and served on the tenant/former owner and, within a couple of days, a hearing is held. If the judge rules for the property owner, the tenant/former owner is given five (5) days to move out, or the Constable in the area will, literally, move the tenant’s/former owner’s possessions out of the property.
Partition - Two people can own the same property in various different percentages. If they cannot agree on whether to sell the property, or rent it or what to do with it, then either one of them can bring an action for partition or division of the property. If the property can be equally (value-wise) divided, the court will do that. If it cannot be divided equally, then the court will order the property to be sold, and then divide the net proceeds between the parties.
Litigation - Whether it is a title dispute, a partition or arguing over a mortgage, if the parties cannot agree, then real estate litigation is the battlefront. This law all started when the King owned all of the land and allowed his nobles to administer portions of his land. These nobles divided their estates and so on and so on until there were little farms.
Links:
Texas Property Code: After you arrive at the Texas Quick Search page, select "Property Code" from the Code drop down menu. (More)
