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Houston Property and Family Law

Real Estate Law

Contractor/Sub Contractor Issues

You can try to negotiate a settlement for the amount owed. If you feel like the lien is unjustified and you don’t owe the amount, you can file a lawsuit and request the court to remove the lien. 

Yes, in Texas, there is no requirement for a contractor to be licensed, unless the contractor provided electrical work. A contractor can place a mechanics lien on your property even if unlicensed, as long as the contractor follows the rules set by the Texas Property Code. 

Unfortunately, no. You can pursue a civil case against the contractor for not beginning the work. If you are able to convince the judge or jury that the contractor had fraudulent intentions not to start the work at the time you made the payment, then you can get a higher money judgment for damages under fraud.

You would seek a removal of the lien based on the grounds that the lien is filed outside the time permitted by law. If it is true and you are able to prove it, the lien will be removed from the property and the title will be clear.

You can sue the subcontractor in court for breach of contract. In the event the supplier sues you, you can then bring in the subcontractor as someone who is responsible for the supplier’s damages. 

If the supplier places a lien, remember that liens a difficult to place and not everyone qualifies to place a lien. The Texas Property Code is very strict with the requirements. Your supplier may not qualify and in case he/she files a lien, you can ask the court to remove it for being invalid. 

Not always. As mentioned in some of the other answers to questions on this page, Texas Property Code and the Texas Constitution allow only certain parties to place a mechanics lien (M&M) on the property. They are generally contractors and subcontractors. Your 3rd party may not qualify under the Texas Property Code. 

In the event the 3rd party files a lien, you can file a motion to remove the lien and also request the attorney’s fees incurred in asking the court to remove the lien. 

Well depends on the statute of limitations. In Texas, there is a 4 year statute of limitations for breach of contract cases, which means you can sue your contractor if it has been less than 4 years since he completed the job or since you found out about the incomplete performance.

You would have to look at the contract you have with the contractor. If the contract states that time is of the essence, then you can sue your contractor in court.

Congratulations! You filed a lien. The next step is to foreclose the property to get paid under your lien. You have completed a major step. Now you will need to either do it yourself or retain an attorney to file paperwork to foreclose the property and get paid!

In Texas there is no requirement for a contractor to be licensed, unless the contractor provides electrical work. Fortunately, you can sue even an unlicensed contractor. You can sue the contractor or her company like you would sue any other entity; file a lawsuit in court for breach of contract or breach of warranty or both.

Yes, but remember that if it is a homestead of the family, you will need to show that there was a written contract for the repairs and both the spouses (assuming it is owned by a couple) signed your contract. Texas Constitution provides great protections to people’s primary home (homestead), therefore you will need to show a written agreement signed by both the owners to file your lien. 

There several different deadlines to filing a lien but a general answer would be the earlier of 30 days from the date the contractor completes the work or 4 months and 15 days since the contractor has last done the work. These dates vary as a lien requires multiple notices to be sent to the property owner and each notice has its own deadline, but generally it is around 4 months and 15 days. 

Residential Home Issues

A due on sale clause is a condition in most mortgage and loan agreement that requires a homeowner to pay the entire mortgage upon sale of the property. For example, John has a home and he takes out a loan for $1,000,000 for the house. 5 years later, John decides to sell the house to Janice. At the time of the sale to Janice, his due on sale clause will come into effect and he will have to pay his bank the $1,000,000 loan fully. 

 Most banks and lending institutions have a due on sale clause to protect their loan and the collateral for the loan

Earnest Money is a security to the seller and implies the intention of the buyer’s purchase in good faith. The earnest money is credited towards the closing or total cost of the purchase. 

If during the transaction the seller terminates the transaction the Earnest Money is returned to the buyer but in a case where the buyer terminates the transaction or fails to secure financing, the Earnest Money is usually forfeited by the seller.

We always recommend hiring an attorney if you are negotiating a payment for your mineral lease contract. Attorneys have the knowledge on the fair market value of the lease and they have the skills to be able to negotiate a deal. To top it all, attorneys have a duty to act in the best interest of their client so your attorney will do their best to get you the highest price possible.

Maybe. You will probably need consent from all the heirs to be able to sell the property. If you cannot get consent because you cannot locate the heirs or have other issues, you will need to get a court order from either a civil court or a probate court (depending on your circumstances)

You can quitclaim a property to your daughter, however, remember, a quitclaim deed provides no guarantee unlike a general warranty or special warranty deed. While the two latter deeds provide specific warranties if some title issues arose, a quitclaim deed passes down the title with no guarantee. In some cases, it may not even pass whole title. 

 In conclusion, a quitclaim deed does not provide security to the buyer, but if you are intending to pass down property within the family and have no title issues it may be the easiest and quickest way to transfer title to your daughter. 

Involuntary liens are placed on an owner’s property without his/her consent to secure the payment owed to a 3rd party. Once placed they cloud the title and the owner cannot sell the property until the owner pays off the lien. Additionally, the lien holder also has the power to foreclose the property to get paid for their lien. Below are some typical liens that are placed on a property: 

 

  1. IRS liens
  2. Property tax liens
  3. Mechanics and Materialmen’s liens
  4. Judgment liens
  5. Post divorce judgment liens 
  6. Homeowner’s Association HOA liens

Yes, it appears that you have no interest in the property so you cannot transfer what you do not own.  

A quitclaim deed is a legal instrument that transfers title without any guarantee. It is generally used in divorce proceedings and probate proceedings. In your situation it appears that you have no ownership and are not on the loan, so you have nothing to transfer. 

In Texas, a mortgage company, private lender or loan provider can charge up to 10% interest on a loan without it being considered usurious. Your original loan amount may double by the end of the loan period, but it may still be legal as long as the interest is less than 10%.

Your question cannot be answered without additional information. Based on what you are telling us, if you have been subjected to duress then you can challenge the contract in court and a judge may find the contract to be void because of duress. Generally, once you have signed an agreement, you cannot get out of it as a seller. If you fail to comply, the buyer can take you to court and ask for specific performance of the contract.

Yes, easements need not be recorded in the property records, although recording an easement gives everyone notice of the existence of the easement. An easement has to be in writing – the prior owner of the property must have some written document for the easement if it is not recorded. There is an exception to the written document. If the person using the easement 1) paid something for the easement, 2) made permanent improvements to the easement and 3) has been using the easement, then it need not be recorded. We would recommend you seek an attorney and give all the facts of your case to know whether you have any rights to remove this easement, or the use of this easement on your property.

While it is not necessary for a property owner to get an attorney, we would highly recommend it. An attorney can help you hire the right professionals who would determine the highest value of the property being taken by the government and he/she will fight for you to get that high value.

Yes, easements need not be recorded in the property records, although recording an easement gives everyone notice of the existence of the easement. An easement has to be in writing – the prior owner of the property must have some written document for the easement if it is not recorded. There is an exception to the written document. If the person using the easement 1) paid something for the easement, 2) made permanent improvements to the easement and 3) has been using the easement, then it need not be recorded. We would recommend you seek an attorney and give all the facts of your case to know whether you have any rights to remove this easement, or the use of this easement on your property.

Your question is complicated because it has more than one answer. If your neighbor built the dock years ago and has been using it openly in front of all lake front property owners, then your neighbor can claim the right to the dock by adverse possession. Additionally, if your neighbors have been using it, paid something for it to the prior owner, and have now built a brand-new dock, they may have created a legal easement for their use. If neither of those circumstances exist, you may be able to bring a lawsuit to get the right to the dock, but keep in mind that your neighbor can ask for compensation for investing in your dock. At the same time, you can claim it was a gift to you. Talk to a lawyer. This case needs expert advice.

Yes, you can sell it but the title to the home may not clear. If you find a buyer and need title insurance, the title company will soon find that there is a potential tax lien on this property. It may require you and your parents to pay off the taxes before you sell the house. Now, if you find a buyer who does not care to get title insurance and is satisfied with a quitclaim deed to get the house (vs. a general warranty or special warranty deed) then you may be able to sell the house and get some money.

Yes, and likely that it has already hurt your credit. If your property had tax due and it has come to a point of a sheriff’s sale, then there is a tax judgment on your property’s record, and there will be a foreclosure on your record as soon as the sale is conducted. We’d recommend you talk to an experienced foreclosure attorney as soon as possible before the date of the sale. A good lawyer may be able to save the foreclosure from getting on your credit.

Yes, you can both sign the deed to the house and be the owners of the home. Since you are not married you will be considered tenants in common. But if you and your boyfriend have been together for a long time and have been holding yourselves out as spouses, then you could also be considered common law married in Texas. In that case you will both be owners of the house, but you may get some special rights to the house as spouse of your boyfriend. Hope this helps!

Not unless they have a valid easement or a valid right of adverse possession. They will most likely claim an easement on the driveway if that is for example, their only way to get out of their driveway to the main road. If not, you may be able to claim trespass to your property and get them ejected. Talk to an attorney and provide more information to get a more accurate answer.

Generally, no. An owner of a property has the lowest liability for a trespasser, the highest for an invited person such as a plumber. An owner is only liable to a trespasser if the owner intentionally, or with gross negligence caused some injury to the trespasser. You have stated that you have signs that warm people about cables on the driveway. If a person crosses your property without permission and gets hurt by those cables, you as owner will not be liable for his injuries.

Your question is not clear. It seems like you and your partner has bought a house. You paid most of the purchase price. Now you are having issues and you want your partner’s name off the deed. The answer is you cannot take his name off the deed unilaterally. You and your partner can sell the house and then split the proceeds. Maybe you can agree to split them in a way where you get more since you invested more in the purchase price. You can also pay your partner off of his share in exchange for him signing off his name off the deed. Hope this helps.

As said in some of the other answers, there is no easy way to get her name off the house. You can sell the house and split the proceeds. You can buy her out by making a payment of her share of the purchase price and get full title. If neither of these works, you may have to file a lawsuit in court. 

No, a judgment creditor cannot place a lien for your brother on your house. They can only place a lien on a judgment against you to property that is owned by you. Unless your parent owned the property and left it to you and your brother, and your brother has some ownership interest in the property by way of inheritance, the judgment creditor cannot place a lien on your home. Additionally, in Texas homesteads are protected from judgments. Talk to an experienced lawyer to get the lien removed from your house.

Landlord/Tenant Issues

Yes, if your lease with the landlord states that he/she can sell the house with tenants in it, then you are out of luck and the landlord can evict you while making a sale at the same time. Your lease would be the best document to consult to get your answer.

 It depends on what your agreement with the landlord states. If your lease allows for       attorney’s fees to be recovered, then your landlord can request it from the judge at the time of the eviction trial.

You can get an injunction but it depends on what you mean when you state that she tried to throw you out “illegally”. Did the landlord file an eviction lawsuit or did she physically harm you? If she tried to file an eviction, then you can counter sue her. If you believe she is doing something illegal to retaliate against you, then you may have protection under anti retaliation laws. We would need more facts to determine what you can pursue against your landlord.

What is your mother’s condition? Is she lucid? If so, your mother can still override the power of attorney. Also, take a look at the power of attorney and see if there are any defects in it. Some power of attorneys is effective upon disability. Others can be immediately effective. See what type your mother’s power of attorney is. That being said, your sister can evict a tenant from your mother’s house under a power of attorney. You can still contest it under some of the grounds presented above. Talk to a lawyer about your issue. He/she may be able to come up with a solution.

Many things. It could be missing information on the petition. Incorrect facts or incorrect law in the petition. We always recommend consulting an attorney for your eviction procedure because an attorney knows what to place, where to place, and how to argue your case in court.

It depends. A commercial landlord is permitted by Texas law to place a lien on the tenant’s personal property if the tenant is behind on the rent payments. However, the language to allow the landlord generally has to be in the lease. Check your lease. If the landlord has placed language allowing him/her to keep your personal property, you are out of luck. If however, you have paid the past due rent after the eviction, then you may be able to get it back. Hope this helps.

Yes, first the tenant may damage your property leaving you with damages that you’ll have to fix out of pocket. Second, by allowing a tenant to stay on your property for one night you may be creating a month to month tenancy. If the tenant decides not to leave after the first night, you will have to provide him with a 30-day notice to terminate the month to month lease, then a notice to vacate, and then spend money to file a formal eviction lawsuit in court. At the end the tenant may end up staying in your property for at least three months.

Yes, if you have a lease agreement that requires the tenant to pay triple net or “NNN” charges. If it is a triple net lease, then a commercial landlord can pass down all the additional expenses, such as increase in taxes, maintenance, improvements etc to the tenant. You will have to check your lease to see what it says but if it is a triple net lease, then you will have to pay your pro rata tax share.

Eminent Domain/Condemnation Issues

You need not hire a lawyer, but it is highly recommended that you hire one. A lawyer can retain the right professionals who will help determine the highest and best use of your property and the right value for the land that is being taken. In other words, a lawyer will fight to get you the right compensation for your property.

Yes, you have the right to appeal the decision made by the Special Commissioners in a county or district court. You can request a trial by judge, or you can ask for a jury.

The government entity must send two monetary offers and the Bill of Rights informing the landowner of their rights in this process.

The Special Commissioners are paid by the government entity that is involved in the condemnation. The property owner never pays the fee for the Special Commissioners.

 The Special Commissioners preside over a hearing where both the government entity and the property owner present their witnesses and their evidence. At the end of the hearing, the Special Commissioners determine the value of the property being taken.

If a landowner disagrees with the offer made by the government, the government will proceed with filing a lawsuit. A hearing will be scheduled with the Special Commissioners who will determine the value of the property. Each side must bring their evidence and present it to the Special Commissioners, who will then decide the just compensation.

Special Commissioners are judges who determine the correct value of your property that is being taken by the government. They are appointed by the presiding court judge under the rules of the Texas Property Code. A panel of three Special Commissioners determine the value of your property at the hearing. 

No, the government entity is not required to negotiate with the property owner. If the property owner does not want to accept the offer made by the government, the government will file a lawsuit in court and request the judge to determine the correct value of the property.

If you and the government cannot reach an agreement, a lawsuit can be filed in court for a judge to determine the right compensation for your property. You and the government entity will have a hearing in front of a panel of Special Commissioners who will determine the right value for your property that is being taken.

The government has to follow the laws as set under the Texas Property Code. It has to send two offers, within 30 days of each other, and also send the landowner their Bill of Rights advising them of their rights.

The government starts the process by determining how much property it will need to expand a project. The project must be for public use and to benefit the public. The government begins with getting the value of the land from its experts and then sends an offer based on that expert’s report the landowner.

Eminent domain or condemnation is the government’s right to take an individual’s private property for public use. A good example of this is when the government expands freeways, it has the need to take private property on the sides to expand the lanes. The government would take the private land along the freeway under its right to condemnation. The right to condemnation is provided to the United States government under the Fifth Amendment to the U.S. Constitution.

Your tenants are required to get notice of the condemnation just as a landowner. They will get their due process rights.

You can, but you can also make a counteroffer if you believe that you are not getting the right compensation for your condemned property. It is not necessary for you to take the offer made by the government. If your professionals provide different numbers for the compensation, you can certainly counteroffer with that number.

Absolutely. By law, the property owner would get compensation based on the highest and best use of the property. If the highest and best use of your property is to have a running business, and it generates rental income from that business, the government will pay you just compensation based on all these factors.

Absolutely! Under the Fifth Amendment of the Constitution a property owner has the right to just compensation for their land that is being condemned by the government. The state will provide you with an offer for just compensation for the strip it is taking from you. 

While it is not necessary for a property owner to get an attorney, we would highly recommend it. An attorney can help you hire the right professionals who would determine the highest value of the property being taken by the government and he/she will fight for you to get that high value.

Yes, easements need not be recorded in the property records, although recording an easement gives everyone notice of the existence of the easement. An easement has to be in writing – the prior owner of the property must have some written document for the easement if it is not recorded. There is an exception to the written document. If the person using the easement 1) paid something for the easement, 2) made permanent improvements to the easement and 3) has been using the easement, then it need not be recorded. We would recommend you seek an attorney and give all the facts of your case to know whether you have any rights to remove this easement, or the use of this easement on your property.

Your question is complicated because it has more than one answer. If your neighbor built the dock years ago and has been using it openly in front of all lake front property owners, then your neighbor can claim the right to the dock by adverse possession. Additionally, if your neighbors have been using it, paid something for it to the prior owner, and have now built a brand-new dock, they may have created a legal easement for their use. If neither of those circumstances exist, you may be able to bring a lawsuit to get the right to the dock, but keep in mind that your neighbor can ask for compensation for investing in your dock. At the same time, you can claim it was a gift to you. Talk to a lawyer. This case needs expert advice.

Yes, you can sell it but the title to the home may not clear. If you find a buyer and need title insurance, the title company will soon find that there is a potential tax lien on this property. It may require you and your parents to pay off the taxes before you sell the house. Now, if you find a buyer who does not care to get title insurance and is satisfied with a quitclaim deed to get the house (vs. a general warranty or special warranty deed) then you may be able to sell the house and get some money.

Yes, and likely that it has already hurt your credit. If your property had tax due and it has come to a point of a sheriff’s sale, then there is a tax judgment on your property’s record, and there will be a foreclosure on your record as soon as the sale is conducted. We’d recommend you talk to an experienced foreclosure attorney as soon as possible before the date of the sale. A good lawyer may be able to save the foreclosure from getting on your credit.

A landlord cannot evict an active military member when the member has been deployed, however, there is no law in Texas that protects veterans against an eviction. If a person has not paid their rent, they can be evicted. If you are a veteran, there are services such as Purple Heart that help veterans pay their rent. Look around to see if there is a service that will help you in your past due rent payment.

Yes, first the tenant may damage your property leaving you with damages that you’ll have to fix out of pocket. Second, by allowing a tenant to stay on your property for one night you may be creating a month to month tenancy. If the tenant decides not to leave after the first night, you will have to provide him with a 30-day notice to terminate the month to month lease, then a notice to vacate, and then spend money to file a formal eviction lawsuit in court. At the end the tenant may end up staying in your property for at least three months.

Yes, you can both sign the deed to the house and be the owners of the home. Since you are not married you will be considered tenants in common. But if you and your boyfriend have been together for a long time and have been holding yourselves out as spouses, then you could also be considered common law married in Texas. In that case you will both be owners of the house, but you may get some special rights to the house as spouse of your boyfriend. Hope this helps!

Not unless they have a valid easement or a valid right of adverse possession. They will most likely claim an easement on the driveway if that is for example, their only way to get out of their driveway to the main road. If not, you may be able to claim trespass to your property and get them ejected. Talk to an attorney and provide more information to get a more accurate answer.

Generally, no. An owner of a property has the lowest liability for a trespasser, the highest for an invited person such as a plumber. An owner is only liable to a trespasser if the owner intentionally, or with gross negligence caused some injury to the trespasser. You have stated that you have signs that warm people about cables on the driveway. If a person crosses your property without permission and gets hurt by those cables, you as owner will not be liable for his injuries.

Yes, if you have a lease agreement that requires the tenant to pay triple net or “NNN” charges. If it is a triple net lease, then a commercial landlord can pass down all the additional expenses, such as increase in taxes, maintenance, improvements etc to the tenant. You will have to check your lease to see what it says but if it is a triple net lease, then you will have to pay your pro rata tax share.

Your question is not clear. It seems like you and your partner has bought a house. You paid most of the purchase price. Now you are having issues and you want your partner’s name off the deed. The answer is you cannot take his name off the deed unilaterally. You and your partner can sell the house and then split the proceeds. Maybe you can agree to split them in a way where you get more since you invested more in the purchase price. You can also pay your partner off of his share in exchange for him signing off his name off the deed. Hope this helps.

As said in some of the other answers, there is no easy way to get her name off the house. You can sell the house and split the proceeds. You can buy her out by making a payment of her share of the purchase price and get full title. If neither of these works, you may have to file a lawsuit in court.

No, a judgment creditor cannot place a lien for your brother on your house. They can only place a lien on a judgment against you to property that is owned by you. Unless your parent owned the property and left it to you and your brother, and your brother has some ownership interest in the property by way of inheritance, the judgment creditor cannot place a lien on your home. Additionally, in Texas homesteads are protected from judgments. Talk to an experienced lawyer to get the lien removed from your house.

Homeowner’s Association (HOA) Issues

Yes, a standard Texas Real Estate Commission (TREC) disclosure form includes in Section (9), disclosure of any outstanding HOA assessments. A seller who is aware of the assessments but fails to do so, will be liable under fraud in a real estate transaction and you will be entitled to damages. You can determine if the seller was aware by asking the HOA to send you a complete record of all notices sent to the property address.

No, the HOA dues are owed by the property owner and nonpayment of the dues can lead to a lien being placed on the property. HOA dues are unrelated to a tenant. Now, without knowing the details of your matter, it is possible that you are talking about an HOA fine for a violation (e.g. not mowing the front yard). If you are in violation, the HOA will assess a fine on the landlord, but if your lease requires you to pay all fines associated with maintenance, the landlord will pass down the fine to you. In this example, you will be paying the HOA assessment in a way.

If you are divorced and do not have title on the condo, then you would not be obligated to pay the HOA fee. If you are still on the title of the property, or you assert homestead rights on the condo, then you will receive a bill for the HOA dues. Remember, it is generally the property that owes the dues, and failure to pay the HOA dues can result in foreclosure of the property.