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There are two types of protests normally available to a homestead exempted property owner: (1) determination of the appraised value of the property; and (2) unequaTexas Property TAZl appraisal of the owner’s property. The first protest type is what is says it is, that the property owner simply disagrees with the value of the property provided in the notice of appraised value. The second type deals with taking a reasonable number of comparable properties within the taxing district, appropriately adjusted based on the factors above, and showing that the appraised value of the subject property in the notice of appraised value is above the median of those property values. Disparities in the timing of the reappraisal of properties within the district may lend certain properties to be at lower values. Due to advancements in technology and the growing need for governmental funding, larger taxing districts have significantly cut down on this time lag.

The property owner will be notified of the hearing time, date, and place at least 15 days prior to the date of the hearing. The chief appraiser is required to provide notice of the rights of the taxpayer, notice of the right to inspect and copy the district’s evidence, and a copy of the hearing procedures. The property owner may appear at the hearing in person, through an agent, or by affidavit. If the property owner fails to appear in some form, they will be precluded from appealing the appraisal review board’s decision. The hearing procedures are very informal. All parties are allowed to offer evidence, examine and cross examine witnesses, and present argument to the board. The property owner is permitted to testify to the value of their property, and may offer an opinion of market value or the inequality of the appraisal by the district.

So long as all of the administrative procedures have been followed to completion, a property owner may further appeal the appraisal review board’s decision to a district court or may elect to engage in non-binding arbitration. Under either avenue, the property owner is required to pay the taxes determined to be due before their delinquency as a precondition of further review. The taxpayer’s petition for review must be filed with the district court within 60 days of the receipt of the appraisal review board’s notice of determination of protest. The review by the district court or arbitrator will be “de novo” or new, so neither the taxing authority nor the property owner is bound by the prior rendition of value. Thus, it is possible for the appraisal district to seek a higher value than it sought in the protest hearing or that set by the appraiser.
A taxpayer may pursue non-binding arbitration by moving the district court to refer the case. However, if the taxpayer wants to engage in non-binding arbitration, the appraisal district must give its consent.

A taxpayer who prevails in a judicial review proceeding may be awarded reasonable attorney’s fees. Those fees may not exceed the greater of $15,000.00 or 20% of the total amount by which the property owner’s tax liability is reduced by the appeal. Further, the fees may not exceed $100,000.00 or the total amount by which the property owner’s tax liability is reduced by the appeal, whichever is less. These fee caps prevent property owners from receiving reimbursement for attorney’s fees where the reduction being sought is only a relatively small amount. The award of fees is, however, mandatory when the taxpayer prevails on a judicial review.

R. Scott Alagood is board certified in residential and commercial real estate law by the Texas Board of Specialization and can be reached at alagood@dentonlaw.com or http://www.dentonlaw.com.

As social media expands at an exponential rate and communication to the masses is made as easy as a click of a button, the world is spewing their thoughts, views, and opinions for everyone to see.  Can such statements come back to haunt the party making them.  Certainly, in many different ways.  Just ask Donald Sterling.

However, when do statements rise to conduct which may place the party making the statements in jeopardy of being sued for fraud.  Fraud or misrepresentation claims must be based on false statements.  So long as a statement consists of “pure” opinion, it cannot constitute a false representation.  Purity in anything is hard to find.  Purity is not so much a condition fixed in time and space, but an ideal or a standard that may be sought after.  Like perfection, it is a pursuit and not something that is necessarily attainable.

It is also difficult to determine whether a statement is one of “opinion” or “fact”.  Webster’s definition of opinion is “a belief stronger than an impression and less strong than positive knowledge.”  Courts seem to follow this definition in most instances.  Courts group “opinions” along with “judgments”, “probabilities”, and “expectations”.  Therefore, statements made about matters that fall short of positive knowledge should not be actionable as an “opinion”.

 There are a few exceptions to the general rule that “opinions” are not actionable fraud or misrepresentations.  These exceptions are: 1) opinions the speaker knows to be false; 2) opinions mixed with false statements of fact; 3) and opinions based on special knowledge.

 The first exception is creates a situation that is difficult to prove in court.  The party accused of making an actionable misrepresentation is put in the position having to prove that although their opinion was wrong, they didn’t know it at the time.  This situation requires the party asserting the exception to prove a negative, which is difficult if not impossible.  So at best, the party ends up testifying that they didn’t know their opinion was untruthful, hopefully backed up by some sensible rationale, and hope that there isn’t any direct or circumstantial evidence to the contrary.  Otherwise, the simple fact of making an incorrect opinion may be enough to allow the fact finder to imply knowledge of the untruthful nature of the statement.

 The second exception is fairly self-explanatory.  Where a party expresses an opinion mixed with statements of fact that are false, the opinion portion of the statement will not clothe the false facts with any protection.  Reliance upon the false facts by the other party will support an action for fraud.  Further, where facts are included with “opinion”, such “opinion” cannot be considered “pure”.

 The final exception relates to opinions based on special knowledge.  Special knowledge means knowledge of specific facts that underlie the false opinion.  However, many courts appear to often confuse special knowledge with special expertise held by persons such as doctors, lawyers, or engineers.  In practice, this exception often makes it difficult for the accused to use the “opinion” defense where the accused party is significantly more sophisticated than the other party to whom the statement was made.  When correctly applied, this exception will negate the “opinion” defense if the party making the statement has actual knowledge of or special access to particular facts underlying the false statement and the party relying upon such statement does not have such knowledge or access.

 Making false statements of opinion can place a party in potentially hot water.   To reduce the chances of being sued for fraud for incorrect statements, consider the following suggestions.  Make it clear when you are expressing an opinion that you are only expressing “your opinion”.  Phrases such as “in my opinion”, “I believe”, “speaking for myself”, or “I think”, will help bolster an argument that the statement was not a statement of fact, but instead an “opinion”.  Be certain that any factual statements are correct and you have the ability to justify their accuracy.  Indicate that you are not sure if that is the case.  In real estate or stock transactions, false statements of fact can create liability even if you honestly believed them at the time.  Give the other party access to the same information you have utilized in forming your opinion or statement of fact.  Give them the opportunity to review it for themselves.  Do what you can to encourage them to look into the subject for themselves.

 Finally, be careful who you talk to and how you disseminate information.  Know your intended audience, and realize that in today’s world, everyone is listening.

 R. Scott Alagood is board certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization.  Scott can be reached at alagood@dentonlaw.com and http://www.dentonlaw.com.

 

Image With the economy beginning to pick up, new housing starts and sales of existing homes seem to be on the upswing as well.  It is important to know what duties the seller has in disclosing the physical condition of a home, and to what extent a buyer may rely upon such disclosures in purchasing real property.  Depending on the type of property being sold, commercial, residential, farm & ranch, unimproved, etc…., the required disclosures vary to some extent.  This article will solely focus on the required disclosures involved in the sale of residential real estate.

“Residential real estate” is defined as a single dwelling unit of residential real property located in Texas.  Section 5.008 of the Texas Property Code governs a seller’s duty to disclose the condition of residential real estate.  You may review the promulgated disclosure form on the Contract Forms tab of the Texas Real Estate Commissioner’s website found at http://www.trec.state.tx.us.

The disclosures required by Section 5.008, include (1) the presence and condition of equipment, fixtures and improvements; (2) the presence or absence of working smoke detectors; (3) defects in walls, foundations, plumbing, electrical, or other major components of the property, including “structural” components; (4) potential problems with termite damage, flooding, aluminum wiring, asbestos, or lead-based paint; (5) whether any item, equipment, or system is in need of repair; and (6) other items affecting the property such as alterations or repairs made without permits or non-compliance with codes, deed restrictions, common areas, and lawsuits.

For “lawsuits”, Section 5.008 only requires the disclosure of “pending” lawsuits at the time the disclosure is made, and does not require disclosure of previous suits which have been dismissed, settled, or completed through final judgment.

Disclosure of “structural” repairs includes any repairs performed to the load-bearing portion of a residence, and includes the foundation, walls, and roof. Repairs to cabinets, sinks, bathroom fixtures, and drywall not caused by a failure in the structural portion of the residence are not required to be disclosed as “structural” repairs.  Other areas of Section 5.008 may require the disclosure of repairs for those items.

A seller is not required to disclose to a potential buyer any deaths on the property that are unrelated to a physical condition associated with the property, or AIDS or HIV-related health problems of previous occupants.

The seller’s disclosure notice must be completed to the best of the seller’s knowledge and belief as of the date of completion and signature.  If there are items, components, or repairs which are not known by the seller on that date and time, the seller must indicate that fact.  There is no legal obligation of a seller to conduct an investigation into matters of which the seller has no knowledge nor any continuing obligation to disclose matters that are later discovered.  Also, a seller’s disclosure notice is not a warranty or guarantee by the seller of the physical condition of the property or dwelling.

However, particular attention should be paid to the form of the disclosure notice being used.  Some residential real estate sales contracts promulgated by real estate trade associations may include disclosures which go beyond those required by Section 5.008.  It is important to read each form of disclosure closely and make sure that each response is true and correct at the time and date such is being made.  Although not required by law, supporting documentation of any disclosed defect or repair may assist the seller in later defending against allegations of misrepresentation or deceptive trade practices.

Also, unless the real estate agent or broker has actual knowledge of a misrepresentation contained in the seller’s disclosure notice and fails to bring such to the attention of the buyer or the buyer’s agent, a seller’s real estate agent or broker is not legally responsible for any misrepresentations made by the seller in its disclosure notice.

Certain types of residential real estate sales transactions are exempted from providing a disclosure notice.  These include (1) court ordered sales; (2) transfers by a bankruptcy trustee; (3) deeds in lieu of foreclosure; (4) judicial and non-judicial foreclosure sales; (5) sales by a fiduciary or administrator of a decedent’s estate, guardianship, conservatorship, or trust; (6) transfers between co-owners; (7) transfers to a spouse or heir; (8) transfers incident to a divorce; (9) transfers to or from a governmental entity; (10) new residences which have not been previously occupied; and (11) where the value of the dwelling does not exceed five percent of the value of the property.

Finally, where a seller fails to provide a disclosure notice to a buyer, the buyer’s sole remedy is to terminate the contract for any reason within seven days from buyer’s receipt of the notice.

R. Scott Alagood is board certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at alagood@dentonlaw.com or www.dentonlaw.com.

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VeronaNJ_CourtsIn response to legislation adopted in 2011, the Supreme Court of Texas has issued new rules governing civil cases filed in justice courts.  These new rules go into effect on August 31, 2012, and will govern the filing, pre-trial procedures, trial, and appeal of all civil cases filed in a justice court.

Historically, cases in justice courts were divided into small claims and justice court cases.  Small claim cases typically involved civil disputes of $10,000.00 or less. However, these same cases could also be heard as a justice court case.  The Texas Rules of Evidence applied to justice court cases, but not to small claims cases.  Certain types of civil disputes can only be initiated in justice courts, such as evictions, tenant lockouts, and the disconnection of residential tenant’s utilities by a landlord.

To some extent, the new rules simplify practice in justice courts.  Under the current rules, multiple and seemingly conflicting statutes could apply, while certain procedural topics are loosely addressed.  Texas Rules of Civil Procedure 523-591 set forth the general rules 737-755 deal with particular cases such as evictions and enforcing a landlord’s duty to repair or remedy residential rental property.  Starting August 31st, these rules will be repealed and replaced with new rules 500-510 of the Texas Rules of Civil Procedure.

The new rules will divide justice court civil cases into four distinct categories (1) small claims cases (rules 500-507); (2) debt claim cases (rules 500-507 and 508); (3) repair and remedy cases (rules 500-507 and 509); and (4) eviction cases (rules 500-507 and 510).

The general rules governing all cases will be found in rules 500-507.  These rules will apply to all small claims cases, and any other case not covered by rules 508, 509, and 510 which may be filed in a justice court.  Small claims cases will continue to apply to any disputes over monetary sums of $10,000.00 or less.  In computing  the $10,000.00 amount, attorney’s fees incurred will continue to be included, while statutory interest and court costs will not.  To the extent the general rules are not in conflict with rules 508, 509, and 510, they will apply to debt claims, repair and remedy claims, and eviction claims.   To the extent that rules 508, 509, or 510 conflict with the general rules, the specific rules shall control.

Debt claims will be primarily governed by rule 508, and will apply to any lawsuits brought to recover a debt by an assignee of a claim, a debt collector or collection agency, a financial institution, or a person primarily engaged in the business of lending money at interest.  These cases will typically involve unpaid credit card claims involving not more than $10,000.00 (as calculated in small claims cases).

Repair and remedy cases will be primarily governed by rule 509, and will apply to lawsuits filed by a residential tenant under Subchapter b of Chapter 92 of the Texas Property Code to enforce a landlord’s duty to repair or emery a condition which materially affects the physical health and safety of an ordinary tenant.  An associated monetary claim will not be allowed to exceed $10,000.00 (as calculated in small claims cases).

Eviction cases will be primarily governed by rule 510, and will apply to any lawsuits brought to recover possession of real property under Chapter 24 of the Texas Property Code.  If not more than $10,000.00 in unpaid rentals (as calculated in small claims cases) is sought, then a rent claim may be joined in the eviction suit.

All other rules of civil procedure and rules of evidence not included in rules 500-510 will typically not apply in justice courts.  The  judge will continue to be able to develop the facts of the case, including questioning witnesses or parties and summoning witnesses to appear.  pretrial discovery may be allowed so long as the judge considers it reasonable and necessary, and only after written court approval is obtained.

For all cases filed in justice court on or after August 31, 2013, the new rules will apply.  For cases which were filed prior to August 31, 2013, and not concluded by that date, the Supreme Court has authorized the justice courts to continue using the old rules where the use of the new rules would not be feasible or would work injustice.  Hopefully, the transaction will be smooth, and practice in the justice courts will continue to be affordable and efficient way to resolve smaller disputes.

Scott Alagood is Board Certified by the Texas Board of Legal Specialization in both Commercial and Residential Real Estate Law and may be reached at alagood@dentonlaw.com and www.dentonlaw.com.

 

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ContractsOne of the most frequent questions asked of attorneys goes something like this.

Q:  X and I verbally entered into an agreement concerning [insert subject matter here}.  X didn’t perform his part of the agreement.  Can I sue him over that agreement?

Verbal agreements may be enforceable where they contain all of the legal elements necessary to form a contract.  That is, there is an offer made by one party, an acceptable of the offer by another party, consideration exists, and the agreement is not otherwise illegal or against public policy.  Consideration may be in the form of goods or money, or may be nothing more than mutual promises of each party to perform in accordance with the agreement.  Certain contracts which have been held to be illegal or against public policy in Texas are gambling debts, Mary Carter Agreements, and unreasonable non-compete agreements.

In situations where it appears that an otherwise enforceable contract exists, the law will not enforce a verbal contract or promise unless it is in writing and signed by the person sought to be charged (or his or her authorized agent).  This legal rule is called the Statute of Frauds and is codified in Section 26.01 of the Texas Business & Commerce Code.

The Statute of Frauds applies to the following types of promises and agreements:

–promises from an executor or administrator to pay the debts or damages of the decedent;

–guaranty agreements;

–an agreement made in consideration of marriage or non marital conjugal cohabitation;

–a contract for the sale of real estate;

–a lease of real estate for a term longer than one year;

–an agreement that is not to be performed within one year;

–an agreement to pay a commission on the sale or purchase of an oil or gas lease, royalty, or mineral interest; and

–an agreement, promise, or warranty of cure relating to medical care or results by a physician or health care provider (excluding pharmacists).

There are other types of agreements which must be in writing and signed by the party to be bound, such as:

–loans from certain financial institutions (Tex. Bus. & Com. Code Section 26.02);

–contracts for the sale of goods for a price of $500.00 or more (Tex. Bus. & Com. Code Section 2.201(a);

–agreements between parties or attorneys touching a lawsuit (Texas Rule of Civil Procedure 11); and

–agreements seeking commissions from the sale or purchase of real estate (Texas Occupations Code Section 1101.806(c)).

Where a contract appears to meet the terms of the Statute of Frauds, the writing must contain within itself or by express reference to another writing all of the essential or material terms of the parties’ agreement.  The contract terms must be ascertained from the writing without resort to outside verbal testimony or writings not referenced in the contract.  Certain terms of a contract may be implied by a court if not specifically addressed, such as the time for performance, time and place of payment, and in certain situations, price.

In a contract involving the sale or lease of real estate which is subject to the statute of frauds, the writing must contain itself, or by reference to another existing writing, sufficient data or other means by w which the land may be identified with reasonable certainty.  Failure of the contract to contain a proper legal description in these situations will render the contract unenforceable under the Statute of Frauds.

Of course, there are always exceptions.  Where on of the parties to an agreement partially performs the agreement, a court will not apply the Statute of Frauds.  “Partial performance” occurs when one party to the agreement performs his part of the agreement and in reliance suffers a substantial detriment for which there is no legal remedy, while the other party would reap an unearned benefit.  For example, Seller agrees to sell his house to Buyer for a specified price, but the agreement is never reduced to writing and no deed to the property is ever delivered to the Buyer.  In reliance of such verbal agreement, the Buyer takes possession of the house, pays the agreed price, maintains and improves the residence, pays the property taxes, insures the dwelling, and otherwise does all the things that an owner would do.  If the Seller than refuses to deed the property to the Buyer following the Buyer’s performance, the law will not render the verbal agreement unenforceable under the Statute of Frauds.

Scott Alagood is Board Certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization and can be reached at alagood@dentonlaw.com or www.dentonlaw.com.  

 

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As stated previously, the law of adverse possession is founded on notice.  Thus, a claimant must make an actual, visible, appropriation of the land in dispute.  Tex. Civ. Prac. & Rem. Code Section 16.021(1).  The requirement of an open, notorious, and visible claim is based on the policy that existing rights in land should not be lost without giving the owner an opportunity to take preventive action by taking prompt action to dispute the claim.

The notice provided to the record owner need not be actual, express notice.  Instead, constructive notice may be presumed from the nature and extent of the acts of adverse possession.  However, if no expressed claim is presented to the record owner, the adverse possession must be so open and notorious, and manifested by such open or visible acts, that knowledge on the part of the title holder may be presumed.  Visible appropriation is typically a fact issue.

The claimant’s appropriation of the land must wholly exclude the record owner.  Mowing the grass, planting flowers, or maintaining the hedge does not constitute a type of appropriation sufficient to give notice of exclusive and adverse possession by the claimant.  However, planting a hedge to establish a boundary line and barrier between the property claimed and the adjacent property may constitute a type of action which will support the basis for adverse possession.

Allowing cattle to graze on another’s land is insufficient, by itself, to establish title by adverse possession.  However, grazing combined with the construction of sturdy enclosures, such as a boundary line fence, may rise to such level.

Fencing of land is one form of visible appropriation.  However, a fence which exists before the claimant takes possession of the land is considered a casual fence that does not support a claim for adverse possession unless the claimant can show the purpose why the fence was erected.  Maintaining or repairing a casual fence generally does not transform a casual fence into a designed enclosure.  Where a casual fence is substantially modified to give the record owner notice that it’s character has changed (such as removing a barbed wire fence and constructing a chain link fence), such may constitute a basis for adverse possession.

Scott Alagood is Board Certified in Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization and may be reached at alagood@dentonlaw.com or www.dentonlaw.com.
 

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To establish a claim by adverse possession, a claimant must enter the land with a claim of right inconsistent and hostile with that of another person.  Tex. Civ. Prac. & Rem. Code Section 16.021(1).  A “claim of right” is defined as the claimant’s intention to appropriate or claim the land as his or her own.  Such claim of right may be established by a public declaration of the claim or by visible and apparent acts.  The verbal assertion of a claim is not necessary.

The claimant need not understand or maintain that the claim of right he or she is relying upon is actually adverse to that of the record title holder.  However, a mistake as to whom actually holds record title is not sufficient to establish adverse possession where the land is shared.

If the appropriation and possession of the land was done through permission or with the consent of the record title holder, then such will not suffice to establish adverse possession.

Adverse possession cannot be established where the claimant recognizes that another person holds title to the land or has offered to purchase the land from the title holder in such a way that would show that the claimant admitted that the title holder is the real owner.

In certain instances (as will be discussed in Part III), visible appropriation may be taken as evidence of a claim of right when the claim of right is not otherwise expressed.

As you can see the law of adverse possession is founded on notice.  Existing rights in land should not be lost without giving the owner an opportunity to take preventative action by taking prompt action to dispute the claim.

R. Scott Alagood is a board certified attorney in both Commercial and Residential Real Estate Law by the Texas Board of Legal Specialization.
 

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The elements of an adverse possession claim or “title by limitations” claim depend on which particular statute of the Texas Civil Practice & Remedies Code applies.  The remainder of this series shall discuss each separate statute in more detail.  For now, start with the proposition that there are statutes which contain limitations periods of 3, 5, and 10 years, an also three (3) statutes which have 25 year limitations periods.  Each statute has certain elements which are common with the other statutes and its own particular set of elements which must be proven to establish title by “limitations” or “adverse possession”.

The common elements which must be proven in order to establish such a claim are as follows:  (1) visible appropriation and possession of the land, sufficient to give notice to the record title holder, that it (2) peaceable, (3) under claim of right hostile to the title holder’s claim, and (4) that continues for the duration specified in the applicable statute.*

Each particular statute will require additional elements beyond those described herein.  Those elements will be discussed in the future parts of this series.  However, neither knowledge of the rights of the record holder nor any intent to dispossess the record owner of the real property is a required element of an adverse possession claim.  An adverse possession claim must be established by the strength of the claimant’s title (veracity and accuracy of the proof of each element of the applicable limitations statute) and not on the weakness of the record owner’s title (or lack of evidence thereof).  There are no presumptions favoring an adverse possession claimant’s claim.  The burden of proof solely rests on the adverse possession claimant.  An adverse possession claim is typically a question of fact not law.

*Each of these elements als have sub-parts or sub-factors which need to be considered, and which will also comprise a future Part in the remainder of this series.

Please contact R. Scott Alagood at Alagood@dentonlaw.com or www.dentonlaw.com.
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