Category Archives: Mortgage/Finance

Contracts, Deeds, Legal Documents, Mortgage/Finance, Real Estate Law

Warranty Deed or Quitclaim Deed? Not Even Close

April 15, 2018 Jeff Rattikin

Quitclaim Deeds are not acceptable conveyances in most instances; they merely “release” claim of title
Warranty Deeds are the preferred instrument to convey title to real estate.
General warranty deeds contain expansive warranties of title.
Special warranty deeds are limited in nature, providing lesser protection from claims.
Special warranty deeds should be accepted only if backed by adequate title insurance protection.

How do Texans effectively transfer real estate ownership from one to another? While mid-century Hollywood would lead you to believe that signatures on the back of a cocktail napkin, or better yet, the good ole handshake, serve as acceptable and perfectly enforceable forms of agreement, today’s consumers must be much more careful, especially with the myriads of legal forms swamping the internet.
When conveying property title in Texas, the content and structure of a proper written, signed and notarized agreement is of utmost importance. But what form of agreement is needed? If the goal is to simply transfer property title, either in whole or in part, from one or more parties to another, without the necessity of contracts, closing statements, mortgage payoffs, title insurance, etc., then that goal may be accomplished with a warranty deed. Examples may be a transfer between former spouses during/after divorce, a gift of property from one to another, or a transaction where the parties are familiar with each other, do not require a closing, mortgage payoff, title insurance, etc., and just need the legal documentation to evidence the transfer, choosing to handle any financial considerations between themselves. If the seller plans to “seller-finance” the transaction and receive future payments, additional loan documents would be necessary.

But what kind of deed? A quick search of the internet will uncover a plethora of forms, most often the quite popular but oh-so-troublesome Quitclaim Deed (often mistakenly referred to as a “quick-claim” deed”). In Texas, quitclaim deeds should be avoided in all situations. Why? Because, contrary to long-held beliefs that they serve to transfer title, in actuality they fall short of that goal. Rather than “conveying” title from one owner to another, they merely “release any claim” to a property in favor of another. That “stepping-aside” and releasing any claim is not NEAR strong enough to convince a title company, for example, to insure the grantee’s ownership. Title attorneys and title companies typically require that all transfers in a chain of title be accomplished by actual conveyances, not releases.

Which leads to the need for the most commonly accepted form of deed, the warranty deed. A warranty deed serves to convey title, while at the same time warrants to the grantee that they will hold title free and clear of any superior lien or claim of others. Especially combined with title insurance, a warranty deed provides a grantee the security they need to acquire such a major asset.
Warranty deeds typically come in two different flavors: general warranty deeds, and special warranty deeds. Despite its perhaps attractive name, a special warranty deed isn’t so special after all. It is a limited deed, whereby a grantor warrants that title is free and clear of claims only during the time of the grantor’s ownership, but not prior in time. Conversely, a general warranty deed contains warranties of title from the beginning of time, providing a grantee much greater security.

If a grantor simply insists on signing only a special warranty deed, a prudent grantee should accept only if they obtain title insurance from a reputable title insurance company, providing third party protection from prior claims of others.

Jeffrey A. Rattikin is an AV Pre-eminent rated attorney, Board -Certified in Residential Real Estate Law by the Texas Board of Legal Specialization. Mr. Rattikin has provided transactional legal services to clients across the State of Texas for over 28 years, emphasizing real estate, business and title law. Mr. Rattikin continues to define new legal frontiers through his incorporation of technology to enhance the attorney-client experience, as evidenced by his firm’s innovative websites www.rattikinlaw.com and www.texaslegaldocs.com.

Contracts, Leases, Legal Documents, Mortgage/Finance, Real Estate Law

Home Sales and Existing Leases: How to Deal With Current Tenants

February 9, 2016 Jeff Rattikin

hand-101003_640 Although more common in commercial transactions, many residential transactions involve the sale of homes subject to existing leases and tenants. A potential buyer of a property in which a tenant currently resides should be aware of the legal status of such leases after closing, and be comfortable with rights and obligations imposed on them by the lease after closing.

For whatever reason, many folks believe that once a property sells, any existing lease automatically terminates, and the new buyer would have the right to immediate possession. This misunderstanding is obviously incorrect; an existing lease, whether written or oral, conveys a leasehold interest in the land that would be superior to any contractual rights that may arise thereafter. Therefore, anyone who goes under contract to buy the property, and ultimately closes on the purchase, would take title subject to the pre-existing lease. The new buyer would in effect step into the shoes of the seller as landlord until the term of the lease has expired. Yes, the new buyer would be entitled to future rent payments made under the lease, but would also be responsible for any obligations and promises the previous owner may have agreed to under the lease.

Because the new buyer will be saddled with the rights and obligations due under the lease, it is imperative that the buyer conduct sufficient due diligence to understand what they are taking on. What does the buyer need to know? For starters, what are the basic terms? Length, amount of rent, rights to renew or purchase, responsibility for repairs, maintenance, taxes, insurance, and the like, are all important. Are the tenants current on rent? Has the tenant pre-paid any rent? The last thing a new buyer wants to find out when he or she becomes the new landlord is that the tenant has prepaid rent for a year, will not be paying any future rent during that time, and oh, by the way, the landlord promised in writing to replace the roof the next month (true fact scenario!).

Most commercial sales contracts contain clauses that provide satisfactory treatment of these issues, but the TREC contract is fairly bare. Fortunately, TREC amended the base form last year to help a bit. Now, under Par. 10B., the seller must provide copies of existing leases within 7 days of the contract effective date. The Buyer will want a chance to review the lease and get comfortable with the terms, so it is important that an option period extend a minimum of 10 days. If the Buyer doesn’t like the lease terms, they would be able to terminate the contract during the option period. Par. 9B (5) provides that any security deposit will be transferred from seller to buyer at closing, and Par. 13 provides that rent will be prorated at closing.

But what important agreement does the TREC form lack? Most well-drafted commercial properties require the seller to obtain an “estoppel certificate” from the tenant, and provide it to the buyer during the option period. An estoppel certificate is a statement from the tenant themselves as to the tenant’s understanding of the lease terms, the amount of rent already paid, and any accrued obligations owed by the landlord. It is always best to confirm with the tenant that they are in agreement with the landlord’s characterization of the lease status. A buyer is well advised to add a provision in Par. 11 calling for an estoppel certificate.

Because lease and tenant-related issues expand the complexity of the transaction, the assistance of a competent attorney will be of great help in wording the contract and evaluating future rights and obligations. Armed with these protections, buyers of tenant-occupied property are in better position to protect themselves from post-closing lease surprises.

Contact Rattikin & Rattikin, LLP

Contracts, Legal Documents, Mortgage/Finance, Real Estate Law

Good Fences Make Good Neighbors – Boundary Lines and Encroachment Agreements

January 27, 2016 Jeff Rattikin

house-908459_640 Misunderstandings regarding boundary lines and fence locations often lead to strained relationships between neighbors. Addressing encroachment issues prior to closing can help ensure that a buyer enjoys a more fulfilling ownership experience.

It is not uncommon for fences to be situated off of a boundary line, especially in older subdivisions. In fact, an argument can be made that it is better for an owner to place a new fence slightly inside the boundaries of his/her lot, so that the neighbor has no right to dictate its location and maintenance. However, human nature dictates that if you give your neighbor an inch, they sometimes take a mile, laying claim to ownership of the strip of land between the fence and the boundary line. Their claim, while typically unenforceable, can still lead to future problems and loss of future contracts.

Who actually owns the fence, and who can control its appearance/location? The brief answer is that the fence is “owned” by the owner (or the predecessor in title) who constructed it, even if it encroaches onto the neighbor’s property. While the fence owner had no right to encroach over the boundary line, that encroachment still does not give the neighbor license to unilaterally move/destroy it. A prudent neighbor should approach the encroacher with evidence of the encroachment (such as a current survey), and reach a resolution of the matter, and head to court if necessary. But exercising a self-help remedy of forcible removal can only lead to future complications.

Typically, a meandering fence was constructed so long ago that it is unclear to either owner which property the fence belongs to. While not foolproof, the parties could rely on the appearance of the fence itself. Usually, a wooden fence owner would construct the fence in such a way that the “smooth” side of the fence faces the owner’s home, and the bracketed support beams face the neighbor. But not always, of course.

Can a property owner lay claim the extra strip of land outside his/her property line and the constructed fence? The theory of adverse possession stands for the proposition that a party who possesses real estate for a significant time can claim ownership of the land, even if they don’t have a deed to it. Although the doctrine is quite popular among those who are encroaching over a boundary line, courts are extremely reluctant to recognize such ownership, especially for platted residential lots and fence issues. And even if viable, adverse possession must be proved up in a court hearing, and a court order obtained. Without a deed or long-term tax payments on the claimed strip, the argument will typically be summarily dismissed.

A prudent buyer under contract to buy a home subject to an offset fence would be prudent to require an agreement from the neighbor as to the property line and rights to move and maintain the fence before closing on the transaction. These encroachment agreements can go a long way to avoid future buyer’s remorse.

Contact Rattikin & Rattikin, LLP

Contracts, Leases, Legal Documents, Mortgage/Finance

Tenant Evictions – a Time Consuming Process

January 18, 2016 Jeff Rattikin

hand-101003_640 If you clients are faced with the need to evict a tenant, they should know that the process must be undertaken in strict adherence to the Texas statutes, and may take longer than expected. If a tenant knows how to play the game, they could stretch out the ordeal for well over a month before possession is finally obtained.

The job of a landlord is never easy, but perhaps the most difficult task most landlords face is retaking possession of a property after a tenant default or lease expiration. The Texas statutes are very precise in outlining the requirements an evicting landlord must follow.

It’s important to understand that for residential tenancies, a landlord cannot simply lock out the tenant and haul off their possessions. A landlord must first properly terminate the right to possession in accordance with the terms of the lease, and then send a three-day written notice of termination before an eviction suit can be filed. Once an eviction suit is filed in the appropriate court, a minimum of six days must pass before a hearing is held. Assuming the landlord is successful at the hearing, a judge will not issue a writ of possession until five additional days expire, during which the tenant may appeal. And after the writ is finally issued, a constable will post an eviction notice on the premises, giving typically three more days before a locksmith and moving crews can show up to physically remove the inhabitants and belongings. All in all, an eviction will take a minimum of 20 days or so after lease termination, and if an appeal is filed, the process can be extended for months. Ultimately, a landlord will often retake possession from an extremely agitated and disgruntled tenant, who may vacate the property in less than pristine condition.

A prudent property owner should understand the inherent risks involved with rental property, and conduct appropriate credit checks and due diligence on any prospective tenant before agreeing to turn over possession to such a valuable asset.

Contact Rattikin & Rattikin, LLP

Mortgage/Finance

Selling or Buying a Home in a Distressed Market: Shortcuts Can Only Lead to More Trouble

August 6, 2014 Jeff Rattikin

Today’s market environment has made it extremely difficult for sellers and buyers of real estate to consummate a transaction under normal procedures. Due to a severe drop in employment rate, tighter lending standards by mortgage companies, and the lingering effects of the recession on all aspects of the U.S. economy, sellers and buyers are resorting to alternative ways for a buyer to get into a house they can’t qualify for, or conversely, a seller to get out of a mortgage they can no longer afford.

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Contracts, Mortgage/Finance

The New SAFE Act: The Death of Seller-Financing in Texas?

August 6, 2014 Jeff Rattikin

A recent law passed by the Texas Legislature has quietly hit the books, one that promises to have a significant and adverse effect on Texas consumers’ ability to obtain financing for the purchase of residential property. The legislation serves to place further limitations on a prospective purchaser’s financing options, at a time when the current negative banking environment already has severely restricted the viability of real estate transactions.

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Mortgage/Finance

Clarification/Update on Texas SAFE Act

August 6, 2014 Jeff Rattikin

Some good news: common sense is finally being applied to the implementation of regulatory restrictions on seller-financing.The Texas Land Title Association Department of Government Affairs has just issued this update:

Doug Foster, Commissioner of the Texas Department of Savings and Mortgage Lending, has written that the Department will continue to allow the statutory seller finance de minimis exception, which has long been allowed under Texas statute but had been placed in doubt since the recent passage of the Texas SAFE Act.

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