Archives for posts with tag: residential

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.

OLYMPUS DIGITAL CAMERASince the early to mid-90’s the importance and value of minerals in North Texas has become clear. Where the surface of a property has been severed from the minerals underlying that property, serious problems can arise. The majority of purchasers of real estate want to utilize the surface of the property for a particular residential or commercial purpose. Because the minerals only have value when extracted from the land under which they sit, the rights of the mineral owner must supersede the rights of the surface owner. The mineral owner has a right to reasonably use the surface of land to develop its minerals. That right can easily interfere and come into conflict with the rights of the surface owner.

Owners and lenders must be aware of the potential interference of the surface by the mineral owner. State laws, local ordinances, specific mineral lease terms, and court rulings may provide some protection against interference with the use of the surface estate by the mineral owner. Recently, Texas title insurance has changed to also provide some protection in certain specific situations.

Where the surface use is paramount to the value of the land, such as an office building, retail center, single family residence, apartment complex, warehouse, manufacturing plant, or other surface intensive use, a prospective purchaser or lender may want to consider utilizing one of the T-19 endorsements to insure potential damage to the surface resulting from the development of the mineral estate. The T-19 endorsements consist of four separate endorsements.

The T-19 Restrictions, Encroachments, Minerals Endorsement may be utilized by a lender. The T-19 provides other coverages beyond interference by the mineral estate. With respect to the mineral estate, it insures the lender against loss sustained by reason of damage to an “Improvement” located on the property on the date of the policy or existing thereafter resulting from the exercise of a right to use the surface of the property for the extraction or development of minerals. The term “Improvement” is defined as an improvement that constitutes real property and includes landscaping, lawn, shrubbery, or trees which are affixed to the insured property. The T-19 endorsement cost is 5% of the basic premium for residential property and 10% for commercial property, but will not be less than $50.00.

The T-19.1 Restrictions, Encroachments, Minerals Endorsement may be obtained by an owner. As with the T-19 endorsement, it also protects against matters other than interference by the mineral estate. With respect to the mineral estate, it insures the owner against loss sustained by reason of damage to an “Improvement” located on the property on the date of the policy or existing thereafter resulting from the exercise of the mineral owner’s rights (same as the T-19). However, the definition of “Improvement” in the T-19.1 is different than that in the T-19. The T-19.1 provides coverage for buildings, structures, roads, walkways, driveways, or curbs which constitute real property, but excludes crops, landscaping, lawns, shrubbery or trees. The T-19.1 endorsement cost is 10% for a residential property or 5% if purchased along with the survey

exception amendment (which is 5% for a residential policy, and 15% for a commercial property or 10% if purchased along with the survey exception amendment (which is 15% for a commercial policy). As with the T-19, the minimum premium for the endorsement is $50.00.

If an owner or lender is not interested in the additional coverages provided by the T-19 and T- 19.1 endorsements (beyond that provided by the mineral estate) or if the price tag for those endorsements is too steep, then a T-19.2 or T-19.3 endorsement may be the way to go. These two endorsements both generally insure against damage resulting from the development of the mineral estate. However, they differ in a few ways.

The T-19.2 insures against damage to “permanent improvements (excluding laws, shrubbery, or trees)”, while the T-19.3 insures against damage to “permanent buildings”. In essence, the T- 19.2 will provide more coverage for damage to “improvements” which includes “permanent buildings” and other “improvements”, where the T-19.2 will only insure damage to “permanent buildings”.

Additionally, the T-19.2 may only be issued for real property of one acre or less improved or intended to be improved for one-to-four family residential use or for real property improved or intended to be improved for office, industrial, retail, mixed use, or multifamily purposes. Where the property is not of the type allowed under the T-19.2, the T-19.3 may provide mineral coverage for permanent buildings.

Both the T-19.2 and T-19.3 endorsements may be issued for either an owner’s or lender’s policy. For a residential or commercial owner’s policy, the endorsement cost is $50.00. There is no cost to include either endorsement in a lender’s policy.

While a title insurance underwriter is not legally required to issue these endorsements, in most situations they will. So don’t be afraid to ask for the additional coverages provided by these endorsements where it may be appropriate.

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 http://www.dentonlaw.com.

reversemortgage7_zps4a2074baTexas allows lenders to make “reverse mortgages” which are secured by a borrower’s homestead.  A reverse mortgage is an instrument that allows a borrower to borrow money against the equity in his or her home in a single installment, in annuity-like installments, or a line-of-credit available on demand.  Like home equity loans, reverse mortgages are subject to a litany of state constitutional restrictions.

A reverse mortgage may only be created voluntarily by the borrower through a written contract.  Each owner and each owner’s spouse must join and consent to the reverse mortgage.  A reverse mortgage may not be made unless the borrower or borrower’s spouse is at least 62 years of age at the time the loan is made.

If the reverse mortgage provides for the annuity-like string of payments, those payments must be made at regularly scheduled intervals.  However, the lender may also make advances on the borrower’s behalf where the borrower fails to pay taxes and assessments, insurance, repairs to the secured dwelling, or any lien with priority over the reverse mortgage.  The proceeds received from a reverse mortgage may be used for anything.  A reverse mortgage will accrue interest at either a fixed or variable rate of interest which may be compounded during the term of the loan.  Most reverse mortgages will accrue interest at a variable rate.  Interest on interest is permitted, and will typically compound monthly.  However, during the term of the loan, there are no monthly repayment requirements.  The principal balance and accrued interest do not become due and payable until one of the following occur:

  • All borrowers have died;
  • The property securing the loan is sold or transferred;
  • All borrowers cease occupying the secured property for longer than 12 consecutive months without prior written approval of the lender;
  • The borrower defaults on an obligation specified in the loan documents to repair and maintain the secured property, pay taxes and assessments, or insure the secured property;
  • The borrower commits actual fraud in connection with the loan; or
  • The borrower fails to maintain the priority of the reverse mortgage after receiving notice from the lender and an opportunity to cure.

Unless voluntarily repaid, when the note becomes due the lender may only satisfy the outstanding balance of principal and accrued interest from foreclosure of the secured property.  Reverse mortgages may only be foreclosed through a lawsuit for judicial foreclosure or an expedited legal proceeding allowing foreclosure under the deed of trust.  Neither the note nor any deficiency occurring from the foreclosure sale may be satisfied from the borrower’s estate.  Said another way, the borrower is not personally liable for the repayment of the loan.

A reverse mortgage may not be made unless the borrower and each owner receive counseling regarding the advisability and availability of reverse mortgages and other financial alternatives.  The borrower and each owner must attest in writing that they each received the required counseling.  If the lender fails to make any required loan advances after receiving notice from the borrower, then the lender forfeits all principal and interest on the reverse mortgage.

Reverse mortgages are not for everyone.  Since the loan will not be typically repaid until after the death of the borrower or the sale of the home, family and heirs should be consulted before entering into the loan.  Life insurance may be an available option to use to pay off the reverse mortgage upon the borrower’s death.  Reverse mortgages may include high closing costs.  Because of a life expectancy factor in the loan repayment formula, less money will be available from the loan for younger borrowers.  Also, if a reverse mortgage is obtained, seniors may be prohibited from receiving available deferrals of ad valorem taxes.

Available alternative options to a reverse mortgage may include:

  • Cashing out whole or variable life insurance policies on the borrower;
  • Obtaining a home equity loan;
  • Selling or leasing the property; or
  • Applying for tax credits and tax abatements for seniors.

While no one plans to run out of money during retirement, the longer folks live, the harder it becomes to sustain the necessary income to provide for living expenses.  A reverse mortgage is one option that may be considered for seniors needing addition income.  However, care should be taken to make sure that all of the resulting consequences have been considered before entering into a reverse mortgage.

Amendments to the Texas Constitution concerning reverse mortgages are currently scheduled for approval during the November 5, 2013, general election.  If approval, these amendments will become effective upon proclamation by Governor Perry.

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

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