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Requirements for a valid foreclosure sale?
- 1. first Tuesday of the month;
- 2. at least 21 days notice;
- 3. b/t 10am and 4pm
- 4. at the door of the courthouse where the ppt is located (if ppt in more than 1 county, at any county where ppt is located)
- 5. public sale
- 6. file notice with the county clerk
requirements for valid notice of foreclosure sale:
- 1. posting notice at county court house door of every county where ppt is located;
- 2. file notice with county clerk in every county where ppt is located;
- 3. sending notice to all parties holding a ppt interest in the ppt
- NOTE: failure to comply with notice requirements invalidates the sale
who owns legal title of ppt sold at foreclosure sale?
- Tx has a LIEN THEORY OF MORTGAGES.
- This means that the mortgagee (bank) never holds legal title.
- Purchaser of ppt at foreclosure receives title WITHOUT any warranties from mortgagee or trustee.
- Warranties, if any, would come from the mortgagor.
- Purchaser of ppt at foreclosure sale takes a quitclaim conveyance from mortgagee.
- Buyer takes ppt as is.
types of deeds?
- 1. general warranty deed;
- 2. special warranty deed;
- 3. quitclaim deed.
highest quality deed?
what does it guarantee?
- General warranty deed.
- It guarantees / obligates grantor to indemnify grantee for loss caused by ANY CLAIMS against title, regardless of when or under whom the claim arose.
what is a special guarantee deed?
- Limits the scope of grantor's warranties by protecting grantee against ONLY CLAIMS of persons deriving their interest THROUGH THE GRANTOR.
- NOTE: grantor only liable for claims that arose while he held title. Not responsible for what happened when prior owners held tittle.
what is a deed?
Written document that evidences intent of an owner of interest in land to convey all or part of his interest to another.
What are the common law warranties that a deed automatically includes?
- Automatically included with the terms "GRANT" and "CONVEY"
- 1. warranty of title
- - assures grantee that no 3P has a superior claim of title.
- 2. warranty agasint encumbrances
- - assures grantee that at the time of conveyance, the interest conveyed is free from all encumbrances.
what is a homestead?
- The Tx Const allows a person to establish a homestead, which is real ppt that is exempt from forced sale by general creditors.
- - The exemption provides protection from ALL LIENS EXCEPT those that are constitutionally permitted.
what are the constitutionally permitted liens on Texas homestead?
- 1. liens for purchase money;
- 2. owelty liens;
- 3. liens for improvements;
- 4. home equity liens,
- 5. liens for Taxes,
- 6. reverse mortgages;
- 7. liens predating the establishment of the homestead;
- 8. refinance of a lien secured by the homestead.
what are the types of homesteads?
- 1. URBAN
- - located within the limits of a municipality; OR
- - extraterritorial jurisdiction; OR
- - platted subdivision
- - protected by police,
- - firefighters, and
- - at least 3 types of utilities (water, sewage, electric, natural gas)
- 2. RURAL
- - whatever does NOT FALL WITHIN URBAN.
- NOTE: a person can claim EITHER an urban or rural homestead but not both.
what are the allowed acres per type of homestead?
- 10 acres
- must have adjacent lots
- 100 acres single adult;
- 200 acres if family
what are the requirements for a VALID DEED?
- 1. writing,
- 2. signed by grantor;
- 3. designate a grantee;
- 4. words of grant;
- 5. adequate description of ppt;
- 6. acceptance and delivery to grantee.
- NOTE: Deed need NOT be sworn or acknowledged or filed to be valid.
what is the purpose and requirements to file a deed?
- - to give NOTICE to 3P's of existence of instrument affecting title to real ppt.
- Requirements for filing:
- 1. valid deed;
- 2. acknowledged, sworn, or proven;
- 3. filed/recorded in real ppt records of the county where ppt is located.
requirements of a valid LEASE?
- - An agreement between landlord and tenant where owner gives lessee exclusive possession of certain ppt during an agreed term in exchange for rent.
- - If lease if for more than 1 year, must be in writing.
- NOTE: no need for witnesses, notarized, or recorded.
what are the duties of a landlord re. repairs?
- LL has a duty to repair security devices upon request or notice by the tenants that devices are inoperable, in need of repair, or replacement.
- - LL may require payment by tenant for such repairs if the repairs or replacements arose by misuse or damage caused by tenant.
- -LL has a statutory duty to make a DILIGENT EFFOR TO REPAIR certain conditions that MATERIALLY AFFECT THE HEALTH AND SAFETY of the tenant - unless the condition was caused by the tenant.
- NOTE: Notice need NOT be in writing unless the lease requires otherwise.
- NOTE: this is the statutory warranty of habitability.
how does a PARTIAL taking by CONDEMNATION affect lesses's rent responsibilities?
- partial taking = STILL HAVE TO PAY RENT
- BUT, lessee shares in the condemnation award to the extend that lessee has been damaged by the condemnation.
how does a FULL taking by CONDEMNATION affect lesses's rent responsibilities?
This EXTINGUISHES the lease and tenant is excused from paying rent.
is recording a deed necessary to its validity?
if not recorded, what risks does grantee/buyer run?
- NOT required for valid deed.
- - failure to record may result in loss or impairment of interest because a subsequent will not have notice of the prior conveyance.
- * A person who:
- 1. pays consideration;
- 2. without notice;
- 3. in good faith
- is a bona fide purchaser.
- NOTE: if buyer had any kind of notice (actual, constrictive), then he's not a BFP
what does a bona fide purchaser need to show to be protected from prior unrecorded conveyances?
- BFP MUST SHOW:
- 1. that before notice of convenance;
- 2. there was (I) DELIVERY OF A DEED; AND (II) PAYMENT OF A PURCHASE PRICE.
what is the shelter rule?
- A person who buys ppt from a BFP, gets the ppt free of prior conveyances even if he had notice of prior conveyances.
- Buyer is sheltered by BFP's status.
what is a FEE SIMPLE DETERMINABLE?
- - A conveyance typically created by the words "FOR SO LONG AS" "UNTIL" or "WHILE."
- - The conveyance automatically terminates upon the happening of a stated event and the interest reverts to the grantor.
what is a FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT?
- magic words: "but if" "unless" "provided, however"
- - granting of a present possessory interest where the grantor retains a future interest called a "right of reentry".
- - if the condition happens, the conveyance does not automatically terminate.
- - grantor MUST take action and reserve the right of re entry the conveyance.
- NOTE: grantor must expressly reserve the right to terminate.
what is a quitclaim deed?
- - A release of any interest grantor ma have.
- - Grantor makes NO guarantees or representations to grantee.
- NOTE: Quitclaim deeds put grantee on inquiry notice of any doubts as to grantor's interest.
- - inquiry notice is a type of notice, and to be a BFP, you can't have notice.
- NOTE: A buyer of a quitclaim deed CANNOT BE A BFP.
- if quitclaim deed buyer = NOT BFP.
Can one co-tenant, acting alone, convey an easement on common tenancy ppt?
- A co-tennant CANNOT convey or encumber any portion of, or interest in, the common ppt owned by co-tenants without express authority or subsequent ratification of the other tenants.
- Such an action would create in the innocent co-tenant a RIGHT OF PARTITION w/o the involvement of the wrongful co-tenant.
Must one co-tenant reimburse the other co-tenant for for repairs in the ppt?
- A covenant to makes NECESSARY REPAIRS in the ppt is entitled to reimbursement from the other co-tenants.
Must one co-tenant reimburse other co-tenants for rents he received from 3P's?
- - All covenants are entailed to share in the profits of the ppt.
- - Rent is considered profit from the ppt.
- - If only one co T received rent, he must share proportionally with other co T's
- NOTE: a coT who receives rent for ppt held with other coT's receives the rent IN TRUST.
how does a constitutional mechanic's and material man's lien arise?
if there is privity of K b/t contractor and the owner.
how do you perfect a statutory mechanic's and material man's lien?
- 1. an original contractor must file an affidavit at the county clerk's office where the ppt is located;
- 2. mechanic has until:
- a) the 15th day of the 4th month after the debt accrued. (the idiot has 4 1/2 months for file affidavit) FOR NON-RESIDENTAIL CLAIMS
- b) the 15th day of the 3rd month after the debt accrued. for RESIDENTIAL CLAIMS
- 3. mechanic/worker man must send a copy of the affidavit by certified or registered mail to the owner of the thing the mechanic made WITHIN 5 BIZ DAYS OF FILING THE AFFIT.
is a subsequent purchaser subject to a filed mechanic's lien?
- YES - if buyer had notice.
- Personal knowledge of improvements made on the ppt provides sufficient knowledge of contractor's right to assert a claim.
- NOTE: the damned perfected mechanic's lean is effective as of the date the idiot contractor begun work. This is a relation back provision is another stupid protection for these moron contractors
how are mechanic man's liens enforceable?
- they are intimately enforceable by a foreclosure of the lien and sale of the ppt.
- Foreclosure MUST BE JUDICIAL.
what happens if a deed says " two acres on the river side out of XYZ ppt"
- NOT VALID - has to be more precise.
- which 2 acres????
- SOF requires a clear description in writing of the ppt to be conveyed.
what happens if there is a FORGED deed that is later notarized, recorded, and subsequent parties make future conveyances based on the forgery?
- NOTHING - ALL CONVEYANCES THAT STREAM FROM FORGED DEED ARE INVALID.
- - A forded deed is VOID from the outset to all those not signing it.
- - No tittle of land can pass through it.
- - NO person can be a BFP where there is a forgery in the chain of tittle.
- - Legal effect cannot be given to such a transfer under consent, waiver, estoppel, implication, delivery or recording.
- - NO exceptions!
what is Texas' recording act scheme?
- PURE NOTICE SYSTEM.
- - Thus, a perfected lien has priority over any prior unrecorded conveyance, mortgage, absent knowledge to the lien holder.
would a buyer be better off buying a ppt subject to encumbrances directly from seller or at a foreclosure sale?
- FLORECLOSURE SALE.
- - a foreclosure extinguishes all interests junior to the mortgage the ppt is foreclosed on.
is a buyer personally liable on an already existing mortgage on the ppt?
- NOT PERSONALLY LIABLE - unless the buyer assumes the mortgage form the mortgagor.
- - mortgagor is personally liable
- - the mortgage still has to be paid, or the ppt will be foreclosed.
- - buyer is not but mortgagee can foreclose on the ppt.