TEXAS REAL ESTATE LAW

The Texas real estate lawyer assists clients in a variety of matters:


1.    Drafting and negotiating legal real estate documents;
2.    Researching and clearing up title to property;
3.    Representing clients in real estate litigation; 
4.    Representing clients in front of governmental agencies; and
5.    Real Estate consultation.

The day to day documents prepared by lawyers consist of the following:


1.    Real Estate Sales Contracts and Addenda: A real estate sales contract (aka purchase and sales agreement, purchase agreement) is a contract for the sale of real estate, establishing the legal rights and obligations of both buyer and seller, both in regard to the property itself and to the real estate transaction.  These contracts often are negotiated by attorneys on behalf of their clients.
2.    Warranty Deeds: A warranty deed is a document often used in real estate that provides the greatest amount of protection to the purchaser of a property. It pledges or warrants that the owner owns the property free and clear of any outstanding liens, mortgages, or other encumbrances against it.
3.    Promissory Notes:  A promissory note, sometimes referred to as a note payable, is a legal instrument, in which one party promises in writing to pay a determinate sum of money to the other, either at a fixed or determinable future time or on demand of the payee, under specific terms.
4.    Deeds of Trust: A Deed of Trust or Trust Deed is a legal instrument which is used to create a security interest in real property wherein legal title in real property is transferred to a trustee, which holds it as security for a loan between a borrower and lender.
5.    Affidavit of Heirship:  An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased's name. It is an affidavit used to identify the heirs to real property when the deceased died without a will (that is, intestate). ... It does not transfer title to real property.
Title Research:  The County Clerks offices in each county archive the title documents/records from the sovereign nation of Mexico to present.  Within these records are warranty deeds, deeds of trusts, affidavits of heirship, probate records, etc.  An attorney can research these records for their clients.  

 

Title Insurance:  Typically, real estate sales are closed through title companies who research the title for the parties and issue title insurance.  The real estate attorney will then review title commitments issued by title companies on behalf of their clients.  The title commitment consists of the following schedules:

 

1.    Schedule A:  Schedule A contains the following:
a.    Proposed Insured of the Owner’s Policy of Title Insurance:
b.    Proposed Insured of any Loans;
c.    The interest in land covered by the policy;
d.    Who the record title to the land appears to be vested in; and
e.    Legal description of the land.     

 

2.    Schedule B:  This schedule is directed to the buyer and lender that will receive a title policy. This schedule includes the EXCEPTIONS to the policy that will be issued. An exception is something that will not be covered in the title policy and Schedule B includes both standard exceptions and property specific exceptions. A “standard exception” is one that includes promulgated language from the Texas Department of Insurance. These are exceptions to coverage that are to be found in every Owner’s or Lender’s title policy that is issued. These exceptions do not change. A specific exception is one that affects the property to be insured and is not standard in all Texas title policies. Specific exceptions can include things like: restrictions, easements, mineral severances, and setback requirements. A buyer’s agent should encourage their client to review Schedule B in detail as Schedule B tells a buyer about possible limitations in use or encumbrances on the property.

 

3.    Schedule C: Schedule C can be thought of as the “Clear To Close” schedule, because the items listed here must be addressed prior to or at closing in order for a title company to fund and issue its policies. We call them REQUIREMENTS. This section lists items such as: mortgage liens, tax liens, abstracts of judgment, and assessment liens. Schedule C also lists any requirements that must be satisfied to get to closing. This schedule is important to both buyers and sellers as it itemizes what has to be satisfied before closing can occur. A seller needs to pay special attention to this schedule, as it is the checklist of tasks for them to cure in order to close on time. Many “simple” matters are easily resolved by tasks that the closing team handles through the closing process. Most commonly these are matters like ordering a payoff statement on an existing lien or tracking down certified copies of documents. The more complex matters will require participation by the seller and listing agent to be able to get to closing on time. Therefore it is important for the listing agent to work closely together with their trusted closing team at Texas National Title to be sure everything is on track.

 

4.    Schedule D: This schedule is primarily for disclosure purposes. This schedule outlines the parties who have a share in any part of the title premiums, including underwriters and title agents.
 

WILLS

Wills are a common estate planning tool, and are usually the simplest device for planning the distribution of an estate upon the Testator’s death.  If you a person dies intestate (without a will), their heirs will inherit your property, according to Texas statutes for intestate distribution.  For example, surviving spouses inherit their deceased spouses’ community property.  But what if your deceased spouse owned separate property?  Well, under Texas law, the distribution may be different than that of community property, depending on the makeup of the family.

POWER OF ATTORNEY FOR HEALTHCARE

In the field of medicine, a healthcare proxy (commonly referred to as HCP) is a document (legal instrument) with which a patient (primary individual) appoints an agent to legally make healthcare decisions on behalf of the patient, when the patient is incapable of making and executing the healthcare decisions stipulated in the proxy.

HIPAA RELEASE

This document allows family members and friends to access a patient’s medical care information. Medical privacy is a right that's protected by law.  This privacy can be opened by a patient signing a HIPAA release form that authorizes loved ones to receive information about a patient’s health.

DURABLE POWER OF ATTORNEY

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent, attorney, or in some common law jurisdictions, the attorney-in-fact.

DIRECTIVE TO PHYSICIANS

A living will (Directive to Physicians) usually provides specific directives about the course of treatment healthcare providers and caregivers are to follow. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: "If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued."

DECLARATION OF GUARDIAN

A Declaration of Guardian is a legal document where a client tells the court who they want to serve as their guardian if there is ever a guardianship proceeding for them. There are two types of guardians: Guardian of your estate, and guardian of your person.

  • Guardian of the Estate:  The Guardian of a person’s estate is entitled to possess and manage your property including all of the assets in the client’s estate. The Guardian of the Estate will also enforce any obligation in favor of the client and bring and defend lawsuits by or against the client.

  • Guardian of the Person:  The Guardian of the person has the duty to provide care, supervision, and protection of the client. This includes providing clothing, food, medical care (i.e., decisions regarding operations, medications, and medical procedures and treatments) and shelter.

 

Ordinarily, a guardian of the estate will not be needed if a client has named an agent under a power of attorney for financial matters and a guardian of your person will not be needed if you have named an agent under a healthcare power of attorney. However, it is important to know that a Guardianship trumps a Power of Attorney. Therefore, if a Guardianship of the Estate is granted by a Court, the named Guardian of the Estate shall replace the agent named in the Durable Power of Attorney. Likewise, if a Guardianship of the Person is granted by a Court, the named Guardian of the Person will supersede the agent named in the Medical Power of Attorney. The person(s) named will only serve if the client becomes incapacitated.

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