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SEEK AN ATTORNEY WHEN CONVEYING PROPERTY

 

You would not believe what I have found right here in Walker County,  Texas with regards to property records. Hand written, homemade, or  instruments that have nothing to do with what they state they are, all proporting to convey property.  Just this week, I tried a case where a seller tried to evict someone even though they had entered a lease with option to purchase agreement.  Not only could they not evict, it only gets worse for them.  They are liable for fines and attorney fees because they did not understand the executory contract they had drawn up themselves.  They should have seen an attorney at the beginning because, in the end, it is going to cost them a lot more money.

A person may not practice law in the State of Texas unless they are licensed by the State Bar of Texas per Section 81.102 of the Texas Government Code.  In fact, the unauthorized practice of law is prohibited by Section 81.106 of the Texas Government Code.  However, there is always the shadetree “lawyer” who is going to do it himself.  Most of these homegrown documents or instruments end up creating problems with regards to the ownership of the property in question.  What we in the legal community call a “cloud on the title.”

What would you do if one day you received a notice of eviction while sitting in your home because it turns out the person you purchased the home from did not pay off their lender?   Maybe you have been paying for the property for 10 years pursuant to a written agreement with your seller, but they have decided the property is worth more than what they agreed to sell it to you for, so they try to evict you.  Or perhaps you have decided to sell your property and find out that the conveyance to you when you purchased the property was not valid.  Think this could not happen to you?

Each year thousands of lawsuits are filed involving title problems.  Many title problems can arise which cause the complete or partial loss of your home or business property.  Even the most careful search of the public records will not find every title problem.  Because some problems are hidden, your title may appear to be perfect when in fact there may be a problem that is a land mine waiting to explode.

To give you an idea of the types of title problems that may occur, I have compiled this list of “Land Mines” that could result in partial or complete loss of your property or an expensive lawsuit.

“LAND MINES”

1.  Property still held by a deceased owner whose interest has not been properly conveyed by the surviving heirs.

2.  Inadequate legal descriptions.

3.  Defective acknowledgments.

4.  Mistakes in recording legal documents.

5.  Misinterpretation of wills.

6.  Undisclosed or missing heirs.

7. Deeds by minors.

8.  Surviving children omitted from a will.

9.  Marital rights of spouse allegedly, but not legally, divorced.

11.  Deed of community property recited to be separate property.

12.  Instruments executed under fabricated, expired or not properly recorded powers of attorney.

13.  Birth or adoption of children after date of will.

14.  Falsification of records.

15.  Easements established through  continued use but not discovered by a survey or in the public record.

16.  Errors in indexing of legal documents by the County.

17.  Mistaken reports furnished from taxing authorities.

18.  Deeds to or from defunct corporations.

19.  Documents executed under duress.

20.  Errors in tax records.  (For example, listing payment against wrong property account.)

21.  Forged deeds, releases, other forged instruments.

22.  Deeds by persons supposedly single but secretly married.

23.  Deeds from persons not competent to handle their affairs (i.e., deed into a minor).

24.  Lease with Option to Purchase.

25.  Contract for Deed

Problems like these listed above, and many more, happen everyday.  I see them because it is my job to make sure there are no such problems with regard to the property in order to protect the parties’ interests.

An uncovered “land mine” could result in an expensive lawsuit.  A title insurance policy insures that these matters have been diligently researched and addressed before closing the transaction.

Owner’s title insurance protects you against financial loss caused by covered title risks.  The title insurer, without expense to you, will defend you against an attack on the title to your property as insured.  If the attack is successful, the title insurer will indemnify you against the defined financial loss up to the policy limit.  A small, one-time premium provides you with this valuable protection.

When buying or selling a home or real property, it is often the largest single investment a person or couple makes.  Therefore, you should seek the assistance of a real estate agent, attorney and title company before making your investment.  This is not a realm for the shadetree “attorney.”

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.  www.moakandmoak.com

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