Showing posts with label San Antonio real estate lawyer. Show all posts
Showing posts with label San Antonio real estate lawyer. Show all posts

Monday, March 14, 2016

Today is the deadline for comments to TxDOT SH 46 Project in Comal County

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:


Today, March 14, 2016, is the deadline for the public and stakeholders to submit written comments to the Texas Department of Transportation's preliminary plans for "improving" the 7-mile stretch of SH 46 from Bulverde Road to FM 3159 (Smithson Valley Road) in southern Comal County.  The preliminary plans follow an initial study performed by TxDOT and its consultants.

The greater SH 46/US Hwy. 281 vicinity is being considered  for an ambitious transportation Project that may include expansion of SH 46 from two to six lanes in the area of the City of Bulverde and Smithson Valley High School. Also contemplated is construction of sidewalks and bicycle accommodations along the Project area and the insertion of raised concrete medians . These medians would largely prevent left hand turns on the stretch of SH 46, except at major intersections, which would  be controlled by traffic lights.

Expansion of the highway Right-of-Way will necessarily include acquisition of private property through condemnation/eminent domain, and possibly re-alignment of roadways intersecting with SH 46 in the Project area.

TxDOT has done a good job of getting the word out, and has set-up a dedicated website and an email list for interested parties to receive Project information, news and updates. 

A public meeting was held on March 3, 2016, and TxDOT presentation materials from that meeting may be viewed here.  

Following the public meeting, TxDOT called for public comment to its plans -- all of which are still preliminary.  Those comments may be submitted by email to: sh46info@gmail.com or by mail to:


Texas Department of Transportation (TxDOT)                    


SH 46 Improvement Project                          
P.O. Box 5459                                                               
Austin, Texas 78763                   
I submitted a lengthy comment last week on behalf of a client who owns a relatively large property in the Project area. The following are our "General Comments" to the Project:

(i)     the Project budget has been a moving target. Cost estimates from as low as $40M (which presently appears as the combined total of projects 0121507027 and 021401044 on the TxDOT “Project Tracker” website) to $66M (which was discussed when we met in February 2016) to $77M (which was identified at the March 2016 public meeting as an “Early Construction estimate”) have all been publicized by TxDOT. The public, the legislators responsible for balancing the State budget and TxDOT’s financial partners in the Project all deserve transparency in representations concerning the true cost of the Project;

(ii)     the Project’s geographic boundaries have also been somewhat elusive. Initial reports placed the western reach of the Project at Spring Branch Rd. Currently-published information (including the TxDOT project tracker website) extends that boundary to Bulverde Rd., while schematics presented for public view show plans for even further extension west on SH 46 to a point of “tapering” that almost reaches Anhalt Rd. Transparency and dissemination of accurate information about the Project’s boundaries are critical for meaningful public input and understanding of the Project;

(iii)     the 6 lane configuration is vastly more expensive than the original publicized plan for expansion to 4 lanes, and requires acquisition of significantly more Right-of-Way (“ROW”) through condemnation of private property. In many areas (including the area of the Farm) existing TxDOT-owned ROW would be sufficient to expand SH 46 to 4 lanes, so the cost of acquiring additional ROW could be avoided entirely. While traffic counts on SH 46 in the areas immediately adjacent to or east of US 281 may justify 6 lanes, a 4 lane configuration is more than ample for areas that are several miles from that intersection (including the area of the Farm);

(iv)   the proposed, widespread use of medians in the Project imposes serious accessibility challenges for many properties situated along SH 46. Requiring U-turns by large vehicles and preventing left-hand turns into businesses and residences will increase traffic dangers, negatively impact businesses that are currently accessible to both east and west-bound traffic, and promote congestion at U-turn points.  The portions of US 281 in far north Bexar County (between Evans Rd. and Marshall Rd.) are a debacle, and TxDOT should not duplicate those traffic circulation nightmares on SH 46;

(v)      as an alternative/complement to the Project, TxDOT and its partners should consider near-term development/expansion of other access corridors to US 281 and/or Bexar County from southern Comal County west of US 281. A fundamental flaw in the Project’s global objective is failure to include any accommodation for diverting traffic away from SH46 west of US 281 or the 46/281 intersection.  Rather, the Project would promote traffic congestion on SH46 by ignoring other practical, necessary and less-costly roadway expansions which would promote traffic-flow away from the already-congested intersection.  For example, Blanco Rd. south of SH46 has seen tremendous development of residential subdivisions. Yet, despite this rapid growth, and Blanco’s existing length to a terminus point located just north of downtown San Antonio, no viable plan presently exists for expanding Blanco Rd. north of Camp Bullis, or creating an east-west route from Blanco to US 281 between Borgfeld Rd. (to the south) and SH 46. Similarly, and as acknowledged in the City of Bulverde Transportation Master Plan, Bulverde Rd. south of SH46 (near the City of Bulverde) is under-burdened and ripe for expansion – especially as the City and its Chamber of Commerce actively promote increased development and commerce. At a minimum, present consideration should be given to expanding Blanco Rd. and Bulverde Rd. as viable thoroughfares, and investigation of connecting Bulverde Rd. with Spring Branch Rd. as a single north-south corridor is warranted;

(vi)  incorporation of bicycle lanes and pedestrian paths into the Project are superfluous. Inclusion of these features contemplates (and would promote) modes of travel that are unsafe and out of place on a state highway whose traffic volume is predicted to increase manifold in the coming decades;

(vii)    the Project’s stated objective of improving sight distances by “flattening” curves in the existing configuration of SH46 are disparately applied in publicized schematics. While TxDOT literature promotes the benefits of acquiring additional ROW to improve sight distance, numerous existing, sharp curves do not appear slated for expansion/improvement. If improved sight distance is a valid objective, it should be applied with equal impact along all areas of SH 46 whose existing terrain or curves endanger motorists;

(viii)   the SH 46 corridor encompasses numerous sensitive environmental features, including waterways (streams, creeks and tributaries), century oaks, limestone outcrop and other geological features, Hill Country terrain and groundwater recharge areas. TxDOT should proceed with extreme concern for preserving the environmental integrity of the Project area, and the numerous wildlife species that inhabit it;

(ix)     the area of the SH 46 corridor is of significant historical and archeological value to the State of Texas, and numerous artifacts from Native Americans and German settlors abound in the Project area.  Arrowheads and other evidence of Native American life are also frequently found in the Project area; and

(x)      the Project area, including SH 46, itself, is prone to serious flooding. The area has experienced significant flood events within the past year, and on numerous prior occasions. The addition of expanded impervious cover will promote storm water runoff, and present increased drainage problems in an area that already suffers from a lack of flood mitigation. While the Project plans call for concrete drainage features near the intersection of US 281 and SH 46, there appears to be no accommodation for the additional storm water that will affect the eastern and western extremities of the Project area.

If you live or work near the Project area, please participate in the public comment period, and let TxDOT know your thoughts. We are fortunate to live in a nation and State where public input can be expressed and will be heard!

Sunday, February 21, 2016

Which Texas Court Level is Appropriate for your Real Estate Lawsuit?


Filing or defending a lawsuit related to real estate (or any lawsuit for that matter) can be overwhelming. Many parties to real estate suits are first-time litigants, with scarce knowledge about the distinctions between Texas courts, or the intricacies of how the various court levels interact. 

Understanding the complex web of the various court levels in Texas -- and their respective jurisdictional limits -- is essential to a litigant's ability to make informed decisions about a lawsuit, including decisions relating to where the suit should be filed.  The following presents a very general summary of the types of real-estate related suits handed by Texas district courts, county courts, and justice courts: 

DISTRICT COURTS

District courts are the primary trial courts in Texas, and are courts of "general jurisdiction." Article V, Section 8 of the Texas Constitution extends a district court’s potential jurisdiction to “all actions” but makes such jurisdiction relative by excluding any matters in which exclusive, appellate, or original jurisdiction is conferred by law upon some other court. It can be said that Texas district courts generally have original jurisdiction in the following categories of real estate-related lawsuits: 

(i) all suits for title to land;
(ii) all suits for enforcement of liens on land; 
(iii) suits to determine the existence, nature and scope of easements;
(iv) suits (including divorce actions) to determine community property interests in real estate;
(v) suits to determine the validity and effect of deeds or there instruments affecting title to land; 
(vi) suits related to the enforcement of contracts to buy or sell real property; 
(vii) suits to remove encumbrances to title to real estate; and
(viii) suits among joint owners of real estate for partition.

Appeals from judgments of the district courts in civil lawsuit are to the courts of appeals. 

COUNTY COURTS

County courts generally have appellate jurisdiction (usually by trial de novo) over cases tried originally in the justice courts. This appellate jurisdiction includes cases in which a Judgement for eviction has been entered in the Justice Court (an "Eviction Appeal").

Original and appellate judgments of the county courts may be appealed to the courts of appeals. 

JUSTICE COURTS
Texas Justice courts generally have exclusive jurisdiction of civil matters when the amount in controversy does not exceed $200, and concurrent jurisdiction with the county courts when the amount in controversy exceeds $200 but does not exceed $10,000. 

Justice courts also have exclusive jurisdiction over forcible entry and detainer (eviction) cases. This means that all eviction suits must be filed in the Justice Court governing the county and precinct where the real property made the subject of the eviction suit is located.

Trials in justice courts are not “of record.” Appeals from these courts (including in eviction suits) are by trial de novo (i.e. "anew" and as if the first trial had not occurred) in the constitutional county court or the county court at law.

Tuesday, October 27, 2015

Foreclosure Converts Former Owners Into Tenants At Sufferance Who Can Be Evicted

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:


Most home buyers attend closing and are surprised to see the large stack of documents requiring their signatures --   affidavits, verifications, disclosures, contracts, etc.  Sometimes after affixing multiple signatures, buyers go into "auto mode" and sign each document slid across the table to them without even reading or understanding the implications.  This is a mistake, and can have far-reaching implications if things do not go as planned.

Perhaps the most important documents signed by the Buyer at any closing are the Note and Deed of Trust. The Note is a promise to repay a borrowed sum on specified terms (interest rate, payment dates, maturity, etc.), while the Deed of Trust is the "Security Instrument" that contains the loan conditions and lender's remedies in the event of buyer/borrower default. 

Most Deeds of Trust provide that one of lender's remedies is the "power of sale," meaning that the mortgaged property can be sold to a high-bidder to satisfy an outstanding mortgage loan which has been declared to be in default. Such a sale is called a "Trustee's Sale," "Substitute Trustee's Sale" or "foreclosure sale," and is subject to Texas law, but does not require the lender to first file a lawsuit or obtain a judgment. This is why Texas is referred to as a "non-judicial foreclosure" or "title" state.

But what physically happens when the property is sold pursuant to a Deed of Trust, and the buyer/former owner refuses to vacate or surrender possession?  The answer to this question is usually buried deep in the Deed of Trust -- usually on one of those pages that the buyer never bothered to read at the closing table.

Most Deeds of Trust contain a "tenant at sufferance" clause  These tenant-at-sufferenace clauses operate to create a landlord-tenant relationship once a property is foreclosed, with the foreclosure purchaser (purchaser at the Trustee's Sale") acting as "Landlord" and the former owner acting as "Tenant." See Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 564-65(Tex.App.-Houston [14th Dist.] 2014, no pet. h.) (op. on reh'g). Obviously, no lease exists, and therefore, there is no demonstrable legal instrument supporting the former owner's right to occupy the property.

The existence of this constructive landlord-tenant relationship can provide grounds for the foreclosure sale purchaser to file and eviction/forcible detainer action against the former owner who has remained in possession of the property. See Chinyere v. Wells Fargo Bank, N.A., 440 S.W.3d 80, 82 (Tex. App.-Houston [1st Dist.] 2012, no pet.). Further, this alleged landlord-tenant relationship suffices as a basis for the eviction action even though the deed of trust may later be set aside for wrongful foreclosure or other reasons. See Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.-Houston [1st Dist.] 2004, pet. denied) (citing Dormady v. Dinero Land & Cattle Co., 61 S.W .3d 555, 559 (Tex. App.-San Antonio 2001, pet. dism'd w.o.j.)).

Under these circumstances, a  justice court will have jurisdiction to hear the forcible detainer / eviction action, even if the former owner has alleged that the lender botched the foreclosure, or that there were deficiencies in the foreclosure process ("wrongful foreclosure") that cast doubt on the sufficiency of the "new owner's" title.  Stated simply, if a deed of trust provides that in the event of foreclosure, the previous owner will become a tenant at sufferance if he does not surrender possession, the justice court (or county court on appeal) can resolve possession. Salaymeh, 264 S.W.3d at 436.Rice, 51 S.W.3d at 712.  

Under these circumstances, a purchaser at a Trustee's Sale can generally prevail in evicting the former owner by providing documentary evidence regarding (1) the existence of a deed of trust containing a tenancy-at-sufferance clause, and (2) the occurrence of a foreclosure sale, which triggered the tenancy-at-sufferance clause.

Tuesday, March 10, 2015

Manufactured Homes Are Typically Not Real Estate in Texas

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In Texas, "manufactured homes" are generally considered personal property, and not real property. In that regard, the sale and registration of manufactured homes are regulated by the Manufactured Housing Division of the Texas Department of Housing & Community Affairs, and NOT the Texas Real Estate Commission.  Further, retailers/dealers of manufactured homes are not required to obtain TREC licenses.

The exception to this classification as personal property exists only where all of the following factors are present:

  • an owner of a manufactured home has elected in writing to treat the property as real property;
  • the manufactured home is attached to real estate (land) that is owned or leased (on a long-term basis) to the home's owner;
  • the Manufactured Housing Division has approved the election in accordance with Section 1201.207 of the Texas Occupations Code and issued a certified statement of ownership and location; and 
  • a certified copy of the statement of ownership and location has been filed in the real property records in the county in which the home is located.
The difference between being classified as real property versus personal property has tremendous legal implications -- especially when it is time to sell or convey a manufactured home.

Thursday, March 5, 2015

Understanding the Important Legal Distinction Between a Residential "Landlord" and a "Property Manager" in Texas

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Tenants (or former tenants) disgruntled with a lease, rental property condition and/or security deposit accounting / refund are increasingly asserting claims and filing lawsuits against managers of residential real property, in addition to owners/landlords.  On an almost weekly basis a property manager contacts our office after receiving a notice letter or lawsuit filed on behalf of a disgruntled tenant or former tenant.  These claims seem to assume (and sometimes expressly argue) that the landlord and his property manager are interchangeable and subject to the same obligations under a lease.  However, Texas law very clearly states differently.

Chapter 92 of the Texas Property Code expressly applies to and governs "the relationship between landlords and tenants of residential real property." See Tex.Prop. Code § 92.002. Notably, there is no reference to a "property manager" in Section 92.002, which is entitled "Application."

However, the concept of a "property manager" was not overlooked by the Texas Legislature, but rather, recognized and expressly excluded from the legal definition of the term "Landlord," as provided in Tex.Prop. Code § 92.001(2). That statute, entitled "Definitions," provides as follows:
"Landlord" means the owner, lessor, or sublessor of a dwelling, but does not include a manager or agent of the landlord unless the manager or agent purports to be the owner, lessor, or sublessor in an oral or written lease. 
From this definition -- read through the lens of well-settled law concerning statutory construction -- it is apparent that the Legislature specifically intended that managers NOT be considered landlords unless:  (i) there exists an oral or written lease; and (ii) within that lease, the manager "purports to be the owner, lessor or sublessor."  Conversely, where the manager does not purport to be the owner, lessor or sublessor under a lease (or where no lease exists), that manager is NOT a "landlord" for the purposes of Chapter 92.  

The legal significance of a property manager NOT being considered a landlord for purposes of Chapter 92 cannot be overstated.  

Chapter 92 imparts broad duties upon landlords, and provides for sweeping remedies when landlords breach those duties.  If a manager is not acting as a landlord, those duties and remedies (and, under the unambiguous language of Section 92.002, Chapter 92 in its entirety) should not be applicable to a property manager.  

Notwithstanding this clear language, tenants and their lawyers  persist in asserting claims against property managers for alleged violations of Chapter 92 and for "breach of lease." These claims are misplaced, and should be confronted (and ultimately defeated) by the statutory exclusion of property mangers from the definition of "landlord" under Section 92.001(2).

Tuesday, September 30, 2014

Reason Numbers 1 and 2 for Why We Charge for Initial Consultations

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In an earlier blog post, I introduced the reader to the philosophy behind our decision to charge an initial consultation fee of $350.00.  Below are Reasons 1 and 2 (out of 5) explaining in detail why we believe that the value delivered from your time consulting with us far exceeds any "free" interview or "free consultation" you may receive from another law firm in San Antonio, Texas.

1.             YOUR  CONSULTATION WILL BE MORE OF A STRATEGY SESSION, AND WILL BE CONDUCTED BY A REAL ESTATE ATTORNEY 

Most of the law firms that advertise for a “free consultation,” typically use legal assistants or paralegals to meet with prospective clients. Frequently, these non-lawyers are trained to hurriedly interview prospective clients in a meeting in which no attorney is present. The purpose of such "consultations" is to serve a “gatekeeper” function to determine whether speaking with the potential new client is even worth an attorney’s time.  

All of our consultations are handled by a licensed real estate attorney in San Antonio, who will understand your case and be able to explain the legal issues implicated by your particular fact situation. You will have the opportunity to interview that attorney, who will simultaneously interview and educate you.  Following our consultation, you and we will instantly know whether we are a good “fit” for your needs, as well as whether the financial arrangement under which we would consider undertaking your case is feasible.

2.             OUR INITIAL CONSULTATION IS A STRATEGY SESSION and LEARNING TOOL FOR YOU -- NOT A SALES PITCH FOR US

Attorneys who advertise for a “free consultation” use this offer as a promotional gimmick to attract clients.  The consultations we offer are educational opportunities for the prospective client, and not a “sales closing" where we will try to convince you to hire us.  The purpose of an initial consultation with any lawyer should be for the prospective client to gain knowledge about their legal situation, including available strategies available for potential resolution, and potential time and cost factors.

Because of the vulnerable mental state of many prospective clients meeting with a lawyer for the first time, free consultations are breeding grounds for sales pitches that promise quick, cheap or simple solutions to complicated problems. Thus, the benefit of a consultation sways to the attorney’s advantage.

Our firm of San Antonio real estate lawyers fervently believes that initial consultations should function for the benefit of the prospective client. During our consultation, we will listen to you, review related documents, understand your desired outcome, and opine as to the likelihood of success in achieving that outcome. At the conclusion of our consultation, we will provide initial legal advice and make appropriate recommendations with the full understanding that not all legal matters require a lawsuit – or even an attorney. Sometimes we will advise that  we are not the best attorneys for you or your particular legal matter.  

Whatever the outcome, you will leave our consultation feeling far more knowledgeable about your legal situation than when you walked in.  We believe that this value far exceeds our consultation fee of $350.00.