Essays Texas Real Property

Front 1

Can a spouse enter into an oil and gas lease (or any other encumbrance) to homestead without consulting the other spouse?

Back 1

No. Under the TX family code, a spouse alone cannot convey or encumber the homestead without the other's consent. (oil and gas lease is an encumbrance).

Homestead property is up to 200 acres in rural area, and the land need not be continguous as long as it's being used with the home or to support family.

Front 2

Can a tenant terminate a lease where there is property damage that leaves property unusable?

Back 2

Yes. Landlords have a duty to repair conditions that affect the health or safety of an ordinary tenant. If premises are unusable and not due to T's negligene, either may terminate the lease prior to completion of repairs if notice is given.

Landlord's duty to repair does not begin until LL receives insurance proceeds.

Front 3

Can tenant recover rent and security deposit?

Back 3

Yes, can get a pro rata refund of rent from the date T vacated premises AND a refund of the security deposit; BUT cannot recover damages.

Front 4

When can a tenant recover damages in a casualty loss situation?

Back 4

1. The T has the condition repaired.
2. Unsafe condition is not repaired within 7 days of T's notice.

Front 5

The Texas Constitution allows creditors to force the sale of a homestead for the following kinds of debts

Back 5

1. purchase money
2. taxes due on the homestead
3. improvements to the homestead
4. owelty of partition
5. refinance of previously permitted debts
6. home equity loan
7. reverse mortgage

Front 6

When are liens on a homestead valid?

Back 6

1. when lien was placed on property before it became a homestead
2. if lien is for one of the debts allowed by the TX Constitution

Front 7

How do you establish a homestead

Back 7

1. Requires the claimant to show a combination of both overt acts of usage and an intent to claim the land as a permanent residence.
2. Actual occupancy and use of a tract alone does not make it a homestead, it is the most convincing evidence of an intention to establish a permanence resident.

Front 8

Constitutional Mechanic and Materialman's Lien

Back 8

Arises if there is privity of contract between the contractor ad the owner. Exists regardless of whether the claimant has a statutory lien.

Front 9

Perfected Statutory Mechanic and Materialman's Lien

Back 9

Orignal contractor ust file a proper lien affidavit with the county clerk of the county where property is located no later than the 15th day oof the Fourth Month after the day on which the indebtedness accrues. (15th day of the 3rd month if residential). Copy of affidavit ust also be sent by registered or certified mail to the owner or reputed owner of the property at her last known address within 5 days after the date the affidavit is filed with the county clerk. Contractor does not have search title records to establish actual ownership.

IT IS ENFORCEABLE against subsequent purchasers of the property if purchaser had some kind of notice (saw it)

ENFORCED by foreclosure (judicial foreclosure)

Front 10

What does a conveyance of land under the statute of frauds require?

Back 10

1. in writing.
2. signed by party charged
3. sufficiently certain description of property, so as to enable party familiarwith the local to identify the premises to be conveyed.

-acreage in a deed is the least reliable and does not assist in locating the premises. If it cannot be sufficiently identified, deed is unenforceable under the SOF.

Front 11

Is a forged deed enforceable?

Back 11

Forged deed is VOID. Title to land cannot pass under it, even if ran tee and assigns are innocent purchasers. No legal effect even by consent, waiver, estoppel, implication, delivery or recording.

Front 12

quit claim deed

Back 12

-can only conveys interest that grantor already has (and does not itself title)

-grantee under quitclaim deed may not claim the benefits of a recording statute that protects BFPs because grantee takes with notice of of all defects in the grantor's title

Front 13

Is an oral transfer of the executive right to a mineral lease effective?

Back 13

No. An executive right is an interest in land, and the SOF applies. (signed writing required)

Only a Holder of an executive right may into an oil or gas lease.

Front 14

Can a lessee limit the use of the property he leased to prevent use by the mineral lesee?

Back 14

generally the mineral estate is te dominate estate and mineral lesee can use so much of the surface as is REASONABLY NECESSARY. It is an implied grant recognized by TX law that oil and gas lesse have reasonable use of the surface to carry out the business of production.

HOWEVER, if lessor wavies all of the mineral owner's rights to use the surface (a covenant that runs with the land), and it is properly recorded (providing constructive notice to subsequent purchasers), surface lesee an limit the use o mineral lesee.

Front 15

Covenant that runs with the land

Back 15

Binding on successors in interest. It runs if the original parties to the ease so intend and if the covenant touches and concerns the land (benefits the tenant and burdens the landlord).

Front 16

accommodation doctrine

Back 16

1. Impairment experienced by the surface owner is substantial
2. There is an existing use of the surface that is substantial.
3. No alternatives means for production.

Front 17

Prospective purchaser of mineral or royalty interest who sends by mail an offer to purchase and encloses an instrument of conveyance and payment, must include the following:

Back 17

1. a conspicuous statement in at least 14 point typeface with a description of the property to be conveyed
2. conspicuous statement must communicate clearly that by executing and delivering the instrument, the interest owner is selling all or a portion of her mineral or royalty interest.

If files suit against oil & gas company, must give them a 30 day written notice that suit will be filed unless otherwise resolved.

Know damages?? ±

Front 18

what does an oil and gas lease convey?

Back 18

Fee simple determinable. The leseehas the exclusive right to explore, produce, and develop the minerals.

The lesee has an implied right, essentially an easement, to use the surface as is REASONABLY NECESSARY to carry out the purposes of the oil and gas lease--to explore, develop, and produce oil and gas. Landowner has a possibility of reverter. .

Front 19

Do water rights belong to surface or mineral owner?

Back 19

Belong to surface owner. CL rule is that groundwater is subject to the control of the owner of the land under which it flows or is located. Landowner may assert absolute ownership over groundwater by drilling a well and capturing it.

Front 20

What does a trustee have to do in order to have a proper foreclosure sale?

Back 20

Where there is a deed of trust that contains a power of sale provision, the trustee has the right to sell the property without court action if the debtor fails to remedy the defaul.

Front 21

Nonjudicial foreclosure sale requires the following:

Back 21

Give notice at least 21 days before the date of sale by
1. posting written notice, designating the county in which the property will be sold a t the court house door of each county in which the property is located
2. filling a copy of the notice int he office of the county clerk in each county
3. sending written notice by certified mail to each debtor who is also obligated to pay

Notice must include the name and address of the trutee and indicate the earliest time at which the sale will begin. Must indicate the area where the sale will occur at the courthouse if the commissioners court has not designated an area at the courthouse for foreclosure sales to take place.

Must be a public sale at the courthouse, between 10-4pm of the first tuesday of any month following the giving of the 21 day no tie.

NOTE: failure to do this makes notice defective and may serve as a basis for wrongful foreclosure and a setting aside of the sale

Front 22

What kind of recording statute does TX have?

Back 22

Pure Notice. So a perfected judgment lien has priority over any previous unrecorded conveyance (assuming judgment lien didn't know of unrecorded).

Front 23

Rights of a Co-tenant

Back 23

1. Equal right to possession of the whole property

2. Make an accounting to the other co-tenant for profits, but only if 1) ousted, 2) agreement to share, 3) leased the property, 4) depletion of natural resources

3. Contribution - co-tenant must pary their share of expenditures (but only for necessary repairs)

4. Cannot encumber the common property without express authority (easement)

Front 24

When is consent needed to convey oil and gas lease?

Back 24

If it's a homestead, must have consent of both spouses, even if homestead is separate property

NOTE: consent not necessary when it's co-tenants

Front 25

Oil and gas lease

Back 25

is a fee simple determinable

Front 26

lien on homestead

Back 26

is void (with some exceptions) under the Texas Constitution

Front 27

Subleases and assignments in texas

Back 27

tenant must obtain landlord's consent to sublease or assign unless clear expression of intent (such as in a lease); otherwise, landlord may refuse to accept rent and treat the lease as forfeited

Front 28

Easements carry with them the implied right to carry on the stated usage in a manner that:

Back 28

1. reasonably necessary to fulfill purposes of the easement
2. convenient for the easement holder
3. puts as littler burden as possible on the owner of the servient estate

Front 29

Cannot go beyond scope of the easement:

Back 29

an injunction can stop the unauthorized use and is entitled to damages for any harm naturally and directly resulting from the unauthorized use

Front 30

Can a landlord remove a fixture from the property he is leasing?

Back 30

In Texas, landlord cannot remove fixture from leased premises unless the removal is for bona fide repair or replacement.

leasee can terminate the lease and seek damages up to one month's rent, whichever is great

Front 31

What happens once bankruptcy is filed?

Back 31

Under federal Bankruptcy Code, all entities are automatically and immediately stayed or federally enjoined from taking any act or continuing any legal proceeding to attempt to collect from debtor.

Acts taken in violation are voidable and could set aside a foreclosure.

Front 32

What is the SOL for enforcement of liens against real property?

Back 32

4 years. Beings to run on the date of the maturity of the underlying debt.

An automatic stay (under the bankruptcy code), tolls the SOL.

Front 33

Under Tx law, what does a prospective purchaser of a mineral or royalty interest, who sends by mail an offer to purchase (with a check and instrument of conveyance) have to do?

Back 33

-include a "conspicuous statement" (at least 14 point font)
-description of land to be conveyed
-communicate clearly that by executing and delivering the instrument, the interest owner is selling or or a portion of the mineral or royalty interest

Front 34

Deed of property obtained by fraud (including royalty interest)

Back 34

SOL is 4 years (doesn't being until fraud is discovered)

-actionable fraud justifying the cancelation of a deed consists of either a false representation of a material fact or of a promise to perform an action in the future, if the promise is material and made with the present intention not to perform.

Front 35

To commence drilling operation...

Back 35

under texas law, a drilling rig does not have to be operating. Preparation is engouh.

Front 36

Failure to pay royalties is what kind of breach?

Back 36

Breach of contract. NOT a condition of the lease, which will not allow the lease to terminate.

Front 37

Breach of implied covenants and breach of an express clause (in oil and gas),

Back 37

does not terminate the lease

Front 38

Implied covenant duties of oil co.

Back 38

1. protect against drainage (pool unit protects against this by giving a share of the royalties)
2. develop as a reasonably prudent operator

Front 39

Duhig Doctrine

Back 39

Grantor in the middle of the chain of conveyances purports to convey more than 100%of the mineral interest, without stating that his reservation is in addition or another prior reservation. Grantor will bear the loss.

Grantee can assert that estoppel by deed applies such that her interest in not burdened by grantor's reservation.

If first reservation was recorded, then final grantee takes her portion subject to the initial grantor's reservation, but she can see the person who granted the minerals to her and may recover damages for breach of warranty (because she's not getting the interest that was initially warranted to her in the deed).

Front 40

royalty language

Back 40

oil, gas and other minerals PRODUCED AND SAVED

Front 41

Mineral language

Back 41

oil, gas, and other minerals in, on, or under (if a mix of royalty, still mineral interest created)

Front 42

minerals belonging to the surface owner

Back 42

building stone, limestone, caliche, surface shale, sand, gravel, water, near-surface lignite, and iron ore.

Front 43

Is a division order binding?

Back 43

Only until they are revoked unless they contradict the lease (in Duhig, they don't contradict the lease)

NOT binding to the extent it changes or contradicts a lease, except in market value cases.

Front 44

Option contract to purchase land

Back 44

- gives right to purchase
--falls with statute of fraud
- must be in writing, signed by person charged
- must provide (even if by reference to another document) date and description that can be identified with reasonable certainty

(SOF contract doesn't make it void, just unenforceable)

Front 45

Lien on a leasehold

Back 45

Permissible, but it divest when the lease terminates, so a security interest will terminate once the lease termiantes

Front 46

shut-in royalty

Back 46

under a lease does not constitute production that will extend a term interest past its specified period. Authorized to be made if well is capable of producing in paying quantities (lesee's revenues exceed operating costs and royalty payments)

Front 47

fund trapping

Back 47

the ability of a subcontractor to trap funds in the hands of an owner of property for labor or materials which the claimant has furnished to the property and for which he has not been paid.

If notice of the fund trapping is timely and properly given to the owner, the owner must retain the funds until the time period for filing a mechanic's lien affidavit has passed or until the lien claim has been satisfied

An owner who fails to withold payment from the contractor and released funds despite notice of the fund trapping, is personally liable and her property is subject to a lien for such amounts.

(see mechanic's lien)

Front 48

strips and gores doctrine

Back 48

applies to deeds to land in Texas and provides that a conveyance of land bordered by a public road also carries with it the fee to the center of the road (unless contrary intent expressed)

Front 49

Mother Hubbard or coverall clause

Back 49

states that all land granted in the lease all covers
all contiguous or adjacent to or adjoining the herein-described tract.

Clause assures that an oil and gas lease covers small tracts of land not expressly included in the metes and bounds description because of inaccurate surveys, etc

Front 50

Producing in Paying Quantities (PPQ)

Back 50

standard = whether a reasonably prudent operator would continue to operate the well for the purpose of making a profit, not just for speculation

Oil Co. receives enough income from the well to cover operating costs and pay the royalty

Front 51

Exceptions to PPQ (how the lesee can keep the lease when no PPQ)

Back 51

1. Temporary cessation doctrine (temporary shutdown, lesee acts to diligently fix)
2. Marginal well doctrine - PPQ average over several months (what her a reasonably prudent operation would continue to operate the well)
3. Doctrine of Repudiation - is landowner obstructs lessee from developing the lease

Front 52

statute of limitations for adverse possession

"5 year statute"

Back 52

record owner of a parcel of property ust sue a person who adversely and peaceably possesses property within 5 years, or claim is barred, provided the the adverser possosor

1. claims the property under d uly registered deed (colorable title)
2. pays the taxes on the property
3. cultivates, uses, or enjoys the property

Front 53

adverse possession of mineral estate

Back 53

adverse possessor possess the entire fee interest in land, the title acquired through adverse possession extends downward (except to the portion already severed and conveyed

Front 54

If the wrong deed description is conveyed, how do you fix it?

Back 54

In a case of mutual mistake of fact, would have to show...
1. an original agreement to convey land intended to be conveyd
2. mutual mistake, made after the original agreement, in reducing the agreement to writing.

Creates a Reformed Agreement

Front 55

Commercail Landlord's duty to pay security deposit back?

(note that leasing of land, if not residential, is considered commercial)

Back 55

Must return security deposit within 60 days after
1. tenant surreners property
2. provides notice of forwarding address

landlord may deduct for damages or charges for which the tenant is legally liable, BUT must provide a written description and itemized list of the deductions unless the tenant owes rent when the premises are surrendered.

Front 56

3 year statute of limitations

Back 56

Must show color of title (consecutive chain of transfers) in addition to:

1. visible appropriation and possession of the land, sufficient to give notice to the record title holder (grazing cattle not enough, would need an enclosure built)
2. peaceable possession
3. possession under a claim of right hostile to the title holder's claim
4. possession that continues for the duration specified in the statute (3 years)

Front 57

quitclaim deed

Back 57

release of anly interest held and an assignment of that interest to the grantee (not really a deed and does not itself establish title). To prove title, must prove grantor held title.