The Law Office of Robert J. Brewer, fee attorney for Exodus Title, LLC

10/23/2024

10/31/2022

08/16/2019

Why do you want a survey when you purchase a house? Here's a scenario that you would want to avoid. You purchase a home with a gorgeous $80k pool complete with a waterfall, hot tub, and lovely decking surrounding the pool. You decide at a later date to sell the house, and when the survey is completed for the new buyer, it turns out that your pool is built smack in the middle of an easement! Now what do you do? A title company will not insure against the pool being located in an easement when they obviously know it does, and a lender will not lend money on a house with a pool encroaching an easement. So, unless the buyer is willing and able to pay cash, you will not be able to sell the house. While this situation is extreme, I've seen it happen. So....why get a survey? And what exactly is an easement?

An easement gives a third party the right to access your property. For example, the electric company might have an easement in your backyard so they are able to run electric lines under the ground and maintain them at a future date. The same applies for the cable company, phone company, or gas company. So, if the electric company has an easement in your yard, they will have the right to access the easement to maintain their electric lines. This of course will create a problem if you have a pool sitting in the easement. If the electric company has to access the easement and your pool is in the way...well, you can can only imagine the problems that will arise from this!

A few good reasons to obtain a survey:
1. The survey shows the placement of your house on the property and whether the structure encroaches a building line or an easement. It also will protect you from the pool scenario above.
2. It reflects the relationship of your property to your neighbor's property. Example- His fence is on your property or yours is on his property, his house extends over the building line into your yard, etc.
3. It reflects building lines and easements.

Surveys typically cost around $400- $500 for a residential lot, which in the scheme of things is not much of an investment when you are making probably the largest and most important purchase in your lifetime!

Note: Be weary of old surveys because things change over time. Your neighbor might have added on to his house and their new bathroom is now sitting in your yard, etc.

Bottom line: I always recommend a survey.

02/21/2017

Question: I didn't make my payments on my house and the lender foreclosed. I now have the money to make the back payments. Isn't there some type of redemption period where I can go back , pay the lender and get the property back?

Answer: No, in Texas, if the lender forecloses on your property for non payment under the authority of the Deed of Trust (mortgage), there is no redemption period. This means that once the lender forecloses, your ownership interest is extinguished and you have no right to get the property back. This is in contrast to a foreclosure for non payment of taxes, which does allow the owner the right to redeem the property after foreclosure. The length of the redemption period is contingent upon whether the property was your homestead or not.

02/02/2017

I am often asked "Can I convey an interest in my house to my sister/brother/ friend, etc if I have a mortgage against my house?
The answer is as follows: Almost all Deeds of Trust (aka the Security Instrument or mortgage) contain a due on sale clause that prohibits you from selling the property or conveying an interest in the property to a third party while the loan is still outstanding. If you do convey an interest and the mortgage company finds out about it, they may elect to accelerate the mortgage, which means they can require you to pay off the entire mortgage.

So, while there is no law that prevents you from conveying an interest to a third party, your deed of trust does contain a provision that says if you do, they can require you to pay off the entire balance. So the question is, how often does this happen? I have not heard of a mortgage company "calling the entire note due" when an interest is conveyed to a third party. The mortgage company is in the business to make money, so if your loan is in good standing, it wouldn't make sense for them to call the note, when they actually want to earn interest from you.

As an aside, there are some exceptions to the due on sale clause. The borrower is permitted by Texas law to convey an interest to a spouse, or to a trust, or a transfer through probate. Keep in mind a very important point. If you allow someone to "assume" your mortgage without them being formally approved by the mortgage company, you will forever be responsible for that loan. If they make the payments late, your credit will be affected negatively, so it is never a good idea to allow someone to assume your loan unless the mortgage company formally approves them and releases you from liability, which rarely happens.

06/30/2016

Question: I was laid off from my job last year and unfortunately my house went into foreclosure. I owed about $100,000 at the time it foreclosed. The property sold at the foreclosure auction for $175,000. Does the lender get to keep the $75k, which was above and beyond my debt?

Answer: First, the lender can add the following costs to the loan balance to determine the final bid on the property: late payments, late charges, attorney fees, and taxes paid on behalf of the debtor. So, with that said, lets guessimate that the payments were 2 payments behind at $1,500.00 each, late charges total $100.00, attorney fees total $1500.00, and the lender paid $1000.00 in past due taxes on behalf of the debtor. If the bid price at foreclosure was $175k and the loan balance was $100k, subtracting the foreclosure expense of $5,600.00 from the proceeds leaves a balance of $69,400.00 which is considered excess proceeds and due to the debtor (you).
Here's the math: $175k bid price at foreclosure less loan balance of $100,000, less foreclosure expenses $5,600.00= $69,400 due to the debtor.

03/31/2016

Under Texas law, when two people jointly take title to real estate, they hold title as "tenants in common". As tenants in common, when one owner of the property dies, his/her interest would pass to heirs pursuant to a will or pursuant to the laws of intestate succession in the case of no will.

As an alternative to tenants in common, individuals
can hold title to real estate as joint tenants with rights of survivorship. In this case, title would automatically vest in the survivor upon the death of the other owner. In order to achieve this goal, there must be a separate written agreement with the owners of the property consenting to the joint tenancy with right of survivorship and the warranty deed should contain the magic language, "as joint tenants with rights of survivorship" after the grantees' names.

For example, John and Jane Doe want to hold title as joint tenants with rights of survivorship. The warranty deed will reflect their names as John and Jane Doe, as joint tenants with right of survivorship. Note, unmarried individuals must establish the joint tenancy at the time they are conveyed the property, while married couples can establish a joint tenancy at any time with a joint tenancy agreement and the proper verbiage reflected in the deed.

03/17/2016

Is my mortgage loan assumable? Answer: Your loan is only assumable with the consent of your lender. Almost all mortgages contain a "due on sale" clause, which means if you convey the property to a third party, the lender could accelerate the note and demand that the note be paid in full.

02/12/2016

What is an option period in regard to purchasing a house? An option period is a period of time purchased by the buyer that allows the buyer to terminate an earnest money contract for any reason within the agreed upon time frame.

Typically, this is the time period when the buyer has the home inspected. Example: John and Mary Smith enter into a real estate contract to purchase a home. They purchase a 10 day option period for $100.00. During that 10 day period, the Smith's can terminate the contract for any reason without forfeiting their earnest money. If the Smith's exercise this option, the seller keeps the $100.00. If they proceed with the sale, typically the contract will state that the option fee will be credited to the buyer at closing.
The 10 day period begins when the contract is fully executed by all parties.

02/12/2016

Question: i have an outstanding mortgage on my property. Is it illegal for me to convey the property to someone else while the mortgage is not yet paid off?
Answer: Almost all mortgages contain a "due on sale" clause aka an acceleration clause. This clause authorizes the lender to demand payment in full if the property is conveyed to a third party. This is a contractual right and not a legal right, so no, it is not illegal in Texas, but keep in mind the lender can demand payment in full.