Flashcards in Texas Real Property Deck (57)
In Texas, conveyances that are ambiguous are considered to be Fee Simple Absolutes unless what?
1) The conveyance is expressly limited, OR
2) A lesser estate is created
The majority of jurisdictions require specific language to create a life estate. What does Texas require?
No particular words are necessary to create a life estate. "For life," "until his/her death," etc.
What is the Texas distinction with regard to Joint Tenancies?
Unlike most states, a joint tenancy is Texas does not automatically include a right of survivorship. INSTEAD, joint tenants can create a right of survivorship by expressly agreeing to allow their interests to pass under a right of survivorship. NEED SPECIFIC LANGUAGE.
T/F - Tenancy by the Entirety exists in Texas.
Texas is a community property jurisdiction and thus does not recognize the tenancy by the entirety.
T/F - Texas limits the duration of a possibility of reverter and rights of re-entry.
Texas has no durational limits for a posibility of reverter or right of re-entry. Further, RAP does not apply to these types of interests.
T/F - In Texas, a contingent remainder is not destroyed if it has not vested by the time the prior estate terminates.
Like in most states, Texas will wait to see if the contingent remainder ultimately vests.
What is the Rule Against Perpetuities?
Under RAP, specific future interests are valid ONLY if they must vest OR FAIL by the end of a life in being, plus 21 years (and 9 months gestation).
In Texas, how are Charitable Trusts treated if RAP is violated? What happens if the Charity ceases to exist?
Property held in trust is subject to RAP. In Texas, perpetual trusts and indefinite period trusts violate RAP.
HOWEVER, IN TEXAS, RAP DOES NOT APPLY TO CHARITABLE TRUSTS.
Cy Pres - Texas courts use the doctrine of cy prees to reform a charitable trust when its particular purpose has become impossible or impractical. The court can modify the trust to support a different program or charity of similar purpose.
How do Periodic Tenancies terminate in Texas?
Month-to-Month Leases - the tenancy ends on the LATER of (a) the day given in the termination notice, OR (b) one month after the day notice is given.
Week-to-Week (less than a month) - tenancy ends on the LATER of (a) the day given in the termination notice, OR (b) the day following the expiration period.
In Texas, what must a landlord do to evict a holdover tenant. Can the landlord seek double rent?
The landlord must provide the holdover tenant with at least THREE DAYS' NOTICE to vacate before the landlord can evict the tenant.
Texas does NOT allow landlords to collect double rent from a willful holdover.
In Texas, what are the landlord's remedies when a tenant fails to pay rent?
Money - If the landlord provides written notice, he may recover one month's rent PLUS $500.
Lockout - Further, Texas allows a landlord to "lock out" a tenant (literally change the locks). If a residential lease, landlord can lock out a resident if the lease ONLY IF THE LEASE EXPRESSLY SAYS SO. In a commercial lease, landlord can lock out a tenant after placing a NOTE on the tenatn's FRONT DOOR, explaining where a new key may be obtained after back rent is paid. NOTE: A Commercial tenant can get a new key REGARDLESS of whether back rent has been paid!
IF THE LOCKOUT WAS WRONGFUL - the tenant can get two remedies:
1) Possession of the property or terminate the lease; AND
2) One month's rent PLUS $1,000 in damages and costs.
How does a security deposit work in Texas lease agreements?
A COMMERCIAL landlord must refund a tenant's security deposit WITHIN 60 DAYS after tenant surrenders the premises.
A RESIDENTIAL landlord must return the tenant's security deposit WITHIN 30 DAYS after the tenant surrenders the premises.
If the landlord retains all or part of the security deposit, the landlord must provide a WRITTEN REPORT of the DEDUCTIONS. HOWEVER, if the tenant OWES BACK RENT, then the landlord doesn't have to provide the written report.
Does a commercial landlord have a duty to mitigate?
YES. In Texas, if the tenant surrenders the leasehold before the lease is up, a commercial landlord has a duty to take reasonable steps to mitigate damages.
This can be changed by the lease terms. Burden is on the tenant to prove the landlord failed to mitigate.
This is not the majority view.
Does Texas follow the majority view preventing landlords to sue for future rent due like an anticipatory breach?
NO, Texas does allow anticipatory breach in a lease. Landlord can treat the breach as anticipatory and either:
1) Repossess and sue for the value of future rentals LESS the current value of the remaining term, OR
2) Re-lease and sue for the difference between the original contract price and the new tenant's rent.
With regard to habitability, what duty to landlords have?
In Texas, RESIDENTIAL Landlords must provide a SAFE, DECENT, and SANITARY dwelling, as well as make REPAIRS to threats on health or safety of an ORDINARY TENANT.
Does a Texas residential landlord have a duty to make repairs?
Yes. A landlord must make a DILIGENT effort to repair a condition, IF:
1) Tenant gives PROPER NOTICE of the condition in need of repair;
2) Tenant is NOT DELINQUENT on rent at time notice is given; AND
3) Condition HAS TO MATERIALLY AFFECT to health and safety of an ORDINARY TENANT.
What is the statutory period for adverse possession in Texas?
25 Years - General Rule
10 Years - If the land is FEWER than 160 acres.
5 Years - If the claimant has: (1) cultivated, used, or enjoyed the property; (2) PAID TAXES; AND (3) is claiming rights to the property UNDER A DEED (with color of title after acquiring a deed and good faith).
How can a landowner stop adverse possession in Texas?
Language is not enough. Can't just tell them to leave. Adverse possession in Texas is terminated only when the owner FILES A LAWSUIT to recover possession of her land.
A true owner MUST BRING SUIT TO EVICT a trespasser WITHIN THREE YEARS in the case where a trespasser has based title on color of title or an improper recording.
How are disabled owners treated in Texas in the case of adverse possession?
If the true owner is disabled at the time the adverse possession COMMENCES (steps on to land), then the 3-year, 5-year, and 10-year statutes of limitation dont begin running.
What is the executory period?
This is the period in a land sale contract between the contract and the closing on the property.
What are the rights and duties of the seller during the executory period?
Seller holds the land in trust for the buyer. Seller has the right to possess the property. Seller also has the DUTY TO MAINTAIN the property in GOOD CONDITION.
Who bears the risk of loss in a land sale contract in the executory period?
Majority of states - buyer
TEXAS has adopted the UNIFORM VENDOR AND PURCHASER RISK ACT. Under this statute, the risk of loss during the executory period is placed on the SELLER.
T/F - Lenders in Texas, upon default, have the power to force a foreclosure in a mortgage note to satisfy the debt.
Does Texas have Statutory Redemption?
NO, a foreclosure sale is FINAL.
How does Texas treat installment contracts with regard to mortgages?
In most states, if a buyer can't continue to make payments, the buyer defaults, and the seller gets to keep the buyer's interest.
IN TEXAS, the SELLER must give STATUTORY NOTICE before forfeiting the purchaser's interest. If the purchaser has paid 40% or more of the AMOUNT DUE, the seller has the power to sell the purchaser's interest in the property to a new purchaser.
T/F - In a Non-Judicial Foreclosure, in Texas, a purchaser takes the property "AS IS," without ANY express or implied warranties.
What happens in Texas when a foreclosure sale brings in less than the outstanding debt?
Court may issue a DEFICIENCY JUDGMENT.
Is Equity of Redemption allowed in Texas?
Yes. A homeowner may pay off her debt BEFORE the foreclosure sale BEGINS.
What is a Deed in Lieu of Foreclosure?
If the homeowner can't pay off her debt, she can convey the property to the lender in exchange for releasing or canceling any outstanding debt.