Non-Realty Items – What Stays and What Goes?

faucet-426775_640Unfortunately, disputes regarding fixtures and accessories are common, and tend to muddy up an otherwise smooth transaction.   If a buyer has any question as to a seller’s intent to remove or leave an item that may or may not be considered permanently attached to the structure of the home, the future ownership of such item should be specifically negotiated and provided for in the final contract.

Porch Swings. Play Sets. Basketball Goals. Bathroom mirrors. Shelving. These are the things that tend to give rise to heated bickering immediately before or after a closing, as moving trucks are backed up into the driveway and the transfer of possession ensues.   No matter how inclusive the list of equipment and fixtures in Par. 2 of the TREC contract may seem, there is no way for a generic form to address all the specifics of today’s residential real transactions.

Traditionally, the test as to whether an item is considered part of the real estate itself, and therefore automatically transferred as part of the contract, is whether the item is permanently attached to the structure. If so, it is legally considered a fixture and part of the real estate itself. If not, it is considered personal property, not covered by the contract to convey real estate, and freely removable by the seller after closing. But the way modern families furnish and decorate a home, whether an item is permanently built-in and attached is not always easily determined. In such cases, several questions should be asked: is the shelf/cabinet hung by brackets, or screwed into the wall/ceiling? Is the appliance plugged in or hard-wired? Can the item be cleanly removed without causing damage to the structure? Often the correct answer is subject to debate (like those pesky porch swings).

And just because an item is specifically listed in Par. 2B. or C. doesn’t mean the item automatically stays with the property. The listed item must be permanently installed and built-in to stay. For example, even though outdoor cooking equipment is listed under 2.B. as a fixture staying with the property, a free standing outdoor grill cabinet may not be built-in, and therefore may be removed by the Seller.

For these reasons, if there is any question as to the future of the play set, basketball goal, antique medicine chest or framed mirror, as examples, the issue should be discussed. If the seller wants to retain the item, he or she should exclude it from sale by listing it under Par. 2D. If the buyer wants to ensure that it stays with the property, it should be included in a Non-Realty Items Addendum. The best advice is to not assume anything; if it is desired, name it in the contract.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Title Objections

savings-440782_640A prudent Buyer should understand the importance of reviewing title commitments, as well as the procedures for objecting to unacceptable title issues, in order to protect their investment in such a valuable asset.

Let’s face it. Most buyers view the closing and title process as nothing more than a necessary step to finalize their loan, sign the papers, and get the key to their new home. Behind the scenes, however, the title search and resulting title commitment provide a buyer with extremely important information needed to protect their investment. Restrictive covenants, easements, and other agreements filed against the title to the property may severely impact how a buyer may use and enjoy his or her property; therefore, it is imperative that these potential issues are studied and considered by a buyer before they finalize the transaction.

Paragraph 6D of the TREC Contract outlines the procedures and deadlines for a Buyer to object to adverse title issues that appear in the title commitment issued in advance of closing. It is important to note that if title objections are warranted, a Buyer must identify those objections in writing by the deadline reflected in Par. 6D, and ensure that the written objection is sent to the Seller in strict conformance with the notice provisions in Par. 21. If a Buyer fails to make proper objection by the deadline, or fails to send the objection as required by Par. 21, then the Buyer has waived their right to object to adverse title issues, and must complete the purchase of the Property subject to the pre-existing issues.

Realtors often ask what, if anything, should be filled in the lengthy blanks in Par. 6D. Because the TREC Contract does not allow a Buyer to object to common restrictive covenants filed against a residential subdivision (See 6A (1)), if a Buyer has a specific use that they want to ensure is acceptable in the neighborhood, they should list it in the 6D blanks. Examples would be the installation of a high powered communication antenna, wind turbine, boarding or breeding of multiple animals, or repair of others’ automobiles out of the garage. If Buyer has a special use outside of the norm, they should protect themselves by preserving the right to object in 6D if the restrictive covenants would otherwise disallow such use.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Tie Up Loose Ends Before a Real Estate Closing

abode-987096_640Especially with the advent of new CFPB regulations on the horizon, it is critical that all deal points and loose ends be completed to the satisfaction of all parties before any closing documents are signed. Post-closing walk-throughs and other contingencies placed on final funding are not allowed by lenders, and certainly lead to conflicts between the parties, agents and title companies.

A disturbing trend has developed recently, where buyers show up at closing and sign all closing documents, but attempt to delay final funding until they have a chance to conduct a final inspection of the property. Such a practice leads to much uncertainty, as the title company may be in possession of all documents, funds, and authorizations to close, but lacks any control over the timing of buyer’s confirmation.

A title company, as a neutral third party, may only act in accordance with the joint instructions of both parties, and cannot ignore instructions by either party. If the parties’ instructions conflict with each other, then the title company cannot move forward until they reach agreement. If a buyer makes a request at the closing table that the title company hold off on final funding until an inspection occurs, the title company cannot move forward until the buyer provides the title company with a written confirmation to proceed. However, a buyer should know that without a tri-party escrow agreement to the contrary, the buyer does not have the right to make such a demand, and may be liable to the seller for damages if closing is delayed. Typically, the buyer signs a closing affidavit at closing, providing that all contingencies are met, that the title company may close and fund upon receipt of all documents and monies, and that the buyer accepts the property in its present condition. Once all the documents are signed, a buyer may not have the legal right to hold off funding; as a result, it is critical that all inspections, repairs and other issues be dealt with completely before the buyer ever sits down at the closing table.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Same Sex Marriages and Real Estate Contracts

2015’s Supreme Court ruling legalizing same sex marriage has a direct effect on real estate contracts, ownership and homestead rights. As always, it is vitally important that agents inquire about marital status when working with potential clients.

The US Supreme Court’s decision requiring all states to recognize and perform same sex marriages has far-reaching effects, including implications on how real estate is contracted for, owned and conveyed. Now, newly married spouses of the same sex, whether married in Texas or another state, are entitled to all of the rights, benefits and privileges of traditional marriages prior to the decision. Thus, in contracting for and owning real estate, Texas common law rules of homestead, community property, inheritance and divorce are applicable and must be accounted for.

In signing listing agreements, contracts, loans and deeds on homestead property, both spouses must join, even if the property was owned solely by one spouse prior to their marriage. And if the couple subsequently divorces, or one spouse dies without a will, an analysis of community property vs. separate property must be made to determine rightful ownership.

The act of marriage, regardless of gender, has profound legal consequences on real estate ownership. Agents assisting clients must have a clear understanding of a couple’s legal relationship in order to structure a transaction correctly.

Contact Rattikin & Rattikin, LLP

Jack Rattikin, Jr., and Jeffrey A. Rattikin—the partners comprising Rattikin & Rattikin, LLP—have a combined 85-plus years of experience in all aspects of commercial and residential real estate law across the State of Texas. The firm continues a tradition of providing the most professional, ethical and up-to-date legal services available in the industry. In response to the growing needs of its clients, the firm has expanded its areas of practice to include a broad range of real estate and transactional services.

We would welcome the opportunity to assist you with your legal needs, and appreciate your interest in the Firm.

Copyright 2016 Jeffrey A. Rattikin, all rights reserved

Selling or Buying a Home in a Distressed Market: Shortcuts Can Only Lead to More Trouble

Today’s market environment has made it extremely difficult for sellers and buyers of real estate to consummate a transaction under normal procedures. Due to a severe drop in employment rate, tighter lending standards by mortgage companies, and the lingering effects of the recession on all aspects of the U.S. economy, sellers and buyers are resorting to alternative ways for a buyer to get into a house they can’t qualify for, or conversely, a seller to get out of a mortgage they can no longer afford.

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The New SAFE Act: The Death of Seller-Financing in Texas?

A recent law passed by the Texas Legislature has quietly hit the books, one that promises to have a significant and adverse effect on Texas consumers’ ability to obtain financing for the purchase of residential property. The legislation serves to place further limitations on a prospective purchaser’s financing options, at a time when the current negative banking environment already has severely restricted the viability of real estate transactions.

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Clarification/Update on Texas SAFE Act

Some good news: common sense is finally being applied to the implementation of regulatory restrictions on seller-financing.The Texas Land Title Association Department of Government Affairs has just issued this update:

Doug Foster, Commissioner of the Texas Department of Savings and Mortgage Lending, has written that the Department will continue to allow the statutory seller finance de minimis exception, which has long been allowed under Texas statute but had been placed in doubt since the recent passage of the Texas SAFE Act.

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Deeds in Texas: It’s the Type that Counts!

One of the most puzzling issues confronting Texas consumers when attempting to document a real estate transfer is deciding which type of transfer deed is appropriate to use. For generations, well-meaning advisors have unknowlingly led their questioners astray by repeating a well-circulated but extremely inaccurate mantra: In order to transfer title to real estate, the seller should give the buyer a quitclaim deed, often mispronounced a quickclaim or quick claim deed. On innumerable occasions, consumers have contacted my office asking for such a document, claiming that the county clerk’s office at the courthouse advised them to utilize this document. And the bad advice is not limited to just the non-attorney public. Many, many divorce lawyers and probate lawyers routinely subject their clients to potential title issues by including quitclaim deeds in their work product. How such misinformation and misuse has become so widespread is a mystery; however, Texas law is very clear that in most instances, a quitclaim deed is not appropriate, and could lead to future problems.

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MINERAL RIGHTS AND REAL ESTATE PURCHASES: A BREEDING GROUND FOR CONTRACT DISPUTES

No issue has given rise to as many contract disputes in North Texas in recent years as the effect of Barnett Shale development on real estate transactions. For decades, real estate practitioners in North Texas rarely considered mineral rights when negotiating and drafting contracts for sale. However, the rapid rise in the value of mineral rights resulting from the financial success of Barnett Shale drilling, coupled with the increased awareness of the public with respect to minerals, has led to a sometimes heated negotiation over post-closing mineral rights. Continue reading