Lis Pendens - A Powerful but Sometimes Abused Tool for Real Estate Lien Placement

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

The term Lis Pendens literally means "a suit pending" in Latin.  In practice, a Lis Pendens is nothing more than a publicly-recorded, written notice that a lawsuit has been filed which concerns the title to certain real estate or some interest in that real property. 

Legal writers have traced the concept / doctrine of the Lis Pendens back to Lord Francis Bacon --  a 1600's Renaissance Man, crown official and British legal scholar. Cases discussing the doctrine appear in common law, and historical decisions of the courts of the US colonies and American federal courts.

In Texas, the Lis Pendens doctrine has been codified, and can now be found in Section 12.007 of the Texas Property Code. Subsection (a) of Section 12.007 outlines the purpose of a lis pendens in Texas, and provides:

(a) After the plaintiff's statement in an eminent domain proceeding is filed or during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.

Under common law, the lis pendens (or notice of pending action) is filed with the clerk of the court, certified that it has been filed, and then recorded with the County Recorder, who would index the filing. This procedure -- which appears in Texas law at Section 12.007(c) -- gives notice to the defendant who owns real estate that there is a claim on the property, and the recording informs the general public (and particularly anyone interested in buying or financing the property) that there is this potential claim against it. This effect of the Lis Pendens filing is echoed in Texas Property Code Section 13.004  (Yes, Thirteen), which states:

Sec. 13.004. EFFECT OF RECORDING LIS PENDENS. (a) A recorded lis pendens is notice to the world of its contents. The notice is effective from the time it is filed for record and indexed as provided by Section 12.007(c), regardless of whether service has been made on the parties to the proceeding.

The lis pendens then acts as both a notice, and a lien against the affected property, because recording a lis pendens defeats a subsequent purchaser's claim to have purchased encumbered property "innocently," or as a bona fide purchaser who was unaware of the title claim.

In order for a Lis Pendens to have the effect prescribed by Section 13.004, it must contain all information and elements prescribed by Section 12.007(b):

(b)  The party filing a lis pendens or the party's agent or attorney shall sign the lis pendens, which must state:
(1)  the style and number, if any, of the proceeding;
(2)  the court in which the proceeding is pending;
(3)  the names of the parties;
(4)  the kind of proceeding;  and
(5)  a description of the property affected

In addition, the person filing the Lis Pendens in Texas  MUST -- within 3 days after filing the notice with the Clerk -- serve a copy of the notice to each party to the underlying suit "ho has an interest in the real property affected by the notice."  See Tex.Prop.Code Section 12.007(d).

Filing a Lis Pendens is relatively easy in Texas.  As a result, litigants and their lawyers (especially those unfamiliar with real estate law) often file lis pendens notices to encumber real property when title to the property is not affected by a given lawsuit. In these instances, the lis pendens can create an unnecessary burden on real estate that is not implicated by a lawsuit.  Fortunately, this abuse of the lis pendens process can have consequences.

The Texas Property Code sets-out procedures (in two separate statutes) for both canceling, and expunging improper lis pendens filings.  (NOTE:  I intend to write a future entry on this blog about the lis pendens removal process)

In addition, Section 12.002 of the Texas Civil Practices and Remedies Code prescribes harsh penalties, including damages (in the minimum amount of $10,000.00), attorneys' fees and costs for the making or use of a fraudulent lien or claim against real property.  Finally, there may exist a separate cause of action for slander of title, which could lead to the recovery of attorneys' fees and damages from a person improperly liening real property through recording a lis pendens in bad faith. 

Stated simply, just because two parties are warring in the courts, a lis pendens shouldn't be filed unless that war's outcome affects actual title or ownership of the real estate identified in the lis pendens notice. A lis pendens has a specific, defined scope, and should be limited to the instances described in in Section 12.007 (a), above.

Paranoid, Fantastical Conspiracy Suits Over Zuehl Fence / Easement Dormant for Now

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

My oft' publicized defense of the Zuehl Airport Flying Community Owners' Association in a number of easement/fence related suits appeared at one time to be more of a career project than a client engagement. What started out as a series of real estate lawsuits between neighbors became intensely personal when a certain pro se litigant began alleging the existence of a vast conspiracy between my client (the Association), various Guadalupe County officials (including Judges and prosecutors), federal law enforcement authorities, and others. 

Although amusing at first, the fantastical pleadings containing ludicrous allegations became more of an irritant when included in various lawsuits, including three federal RICO/conspiracy suits. The suits, filed in the United States District Court for the Western District of Texas,  were ultimately dismissed, but the unnamed vexatious interloper is apparently undeterred, and continues to allege in writing that a vast conspiracy exists between unrelated parties.

At their heart, the federal suits likely served as nothing more than an effort to give credibility (through shocking allegations) to illogical legal positions asserted in relation to a fence. The suits have now all been dismissed, and no further federal suits may be filed without first obtaining permission from the court.

Here are the links to the last two SA Express New Articles about the Zuehl Airfiled federal conspiracy/RICO suit:

Fence Suit Dismissed

Fence at Root of Federal Suits

Here is an Order from the Bexar County District Court finding the pro se litigant to be "vexatious."  This Order was reversed on grounds that some of the litigations counted toward the number of baseless cases were merely offshoots of the same suit, and not separate litigations.

For those seeking copies of the federal pleadings and U.S. District Court Orders, including the final Order summarily dismissing the most recent case, please contact me by email.

When Can Property Managers Represent Owners of Real Estate in Court?

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

PLEASE NOTE THAT THE CONTENTS OF THIS POST ARE SUPERSEDED EFFECTIVE 8/31/2013, AS THE RESULT OF THE ADOPTION OF NEW RULES FOR THE JUSTICE COURTS. PLEASE SEE MY MORE RECENT POSTS RELATING TO THE NEW EVICTION LAWS!

Many property managers in Texas offer eviction-related representation to their owner-clients. While these services are frequently limited to issuing Notice to Vacate, occasionally, a tenant will require Court intervention before he or she vacates a rental premises. When this occurs, it is important to understand the parameters within which non-lawyer property managers can represent their clients' interest in Court.

The general law in Texas is that only a licensed attorney can represent another person's, or any corporation's, interests in court.  Specifically, Section 83.001(a) of the Texas Government Code prohibits a person, other than a member of the state bar from practicing law.  Under the same statute, the "practice of law" is defined as "the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge... the legal effect of which under the facts and conclusions involved must be carefully determined."   See Section 81.101 of the Texas Government Code.

However, an exception to the general rule exists in connection with EVICTION cases in the JUSTICE COURTS. This exception is found in two separate places in the law:

Texas Property Code Sec. 24.011.  NONLAWYER REPRESENTATION. In eviction suits in justice court for nonpayment of rent or holding over beyond a rental term, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. In any eviction suit in justice court, an authorized agent requesting or obtaining a default judgment need not be an attorney.

Texas Rules of Civil Procedure: RULE 747a. REPRESENTATION BY AGENTS. In forcible entry and detainer cases for non-payment of rent or holding over beyond the rental term, the parties may represent themselves, or be represented by their authorized agents in justice courts.

In all other types of eviction cases (i.e. non-monetary defaults or breach of Lease cases, the Owner can represent him/herself, but he/she cannot be represented by a property manager, unless that manager is also a licensed attorney.  

Further, because an appeal of a Judgment entered in an eviction suit is taken to the County Court at Law, a non-lawyer may not represent the owner's interests on appeal.

As with any power, just because you "have" it, does not always mean you should exercise it. Whether a manager hires an attorney in the early stage of the eviction process, versus saving the funds and attempting to prosecute an eviction themselves, is one that should be made after careful deliberation, and on a case-by-case basis.

How Landlords and their Property Managers May Dispose of Personal Property of Deceased Tenants

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In was has become a rarer and rarer occurrence in last few of the 16 years that I have been licensed to practice law,  a client (Property Manager) stumped me this week by asking a question whose answer I hadn't the slightest clue.

Turns out that the sole tenant /occupant of a rental property had died, and the period for which she had paid rent under her lease was soon expiring. The client wanted to know if it was permissible to dispose of the client's furniture, clothing and personal property in the rental unit. The tenant had been there longer than the manager, and no next of kin or contact person was known.  

In all honesty, I was taken aback in that: (i) this very basic basic landlord / tenant question had never been presented to me before;  (ii) I hadn't the foggiest idea of what the law said, if anything; and (iii) this issue will likely present itself in most managers'/landlords' careers.

So, when all else fails, I did what I learned all those years ago in law school -- I read the law (in this case Chapter 92 of the Texas Property Code).  And there it was -- hiding in plain sight since adopted in 1999  -- Section 92.014, aptly entitled "Personal Property and Security Deposit of Deceased Tenant."


That statute requires tenants, upon a landlord's written request, to provide the name and contact information for a person who should be contacted upon the tenant's death to remove his or her possessions and receive the security deposit. Upon the tenant's death, the law allows landlords to remove and store all of the property found on the premises and requires landlords to turn the property over to this authorized person. The landlord may discard the property if (1) the authorized person has not removed it within 30 days after receiving a written request by certified mail to do so and (2) no other person has claimed it. Tex. Property Code Ann. § 92.014 Texas law also authorizes a tenant and landlord to agree, in a written lease or other agreement, to a different procedure for removing, storing, or disposing of a tenant's property upon the tenant's death. Tex. Property Code Ann. § 92.014(d).

If a deceased tenant did not leave a next of kin or contact, then the law appears reasonably (though not perfectly) clear that a landlord can remove and store their property upon their demise. Tex. Property Code Ann. § 92.014(c)(1).  However, the law is silent as to how long the property must be stored, or the time or manner in which it may be disposed.  In this instance, common sense and reasonableness should be the Manager/Landlord's guide.  After all, if it were the belongings of your loved one, you would want them cared for in a compassionate manner.

It is also prudent for Texas landlords and their property managers to ensure that each  living tenant provides the landlord with the name, address, and telephone number of a person to contact in the event of the tenant's death; and signs a statement authorizing the landlord, in the event of the tenant's death, to:

(A)  grant to the designated person access to the premises at a reasonable time and in the presence of the landlord or the landlord's agent;



(B)  allow the designated person to remove any of the tenant's property found at the leased premises;  and

(C)  refund the tenant's security deposit, less lawful deductions, to the designated person.

Texas Deeds Must Contain Adequate Property Descriptions

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Texas law reporters are brimming with cases involving failed sales or transfers of land based on vague, confusing or just plain wrong descriptions the real property intended to be conveyed.  Under Texas law, inadequate property descriptions -- particularly those that don't identify the property location -- will render a deed or other conveyance document ineffectual. This is true because location is an essential element of a deed, without which the deed is void. See Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945). 

To be sufficient, a writing conveying title must provide within itself, or by reference to some other existing writing in existence at the time of the deed, the means or information by which the land being conveyed can be identified with reasonable certainty. Williams v. Ellison, 493 S.W.2d 734, 736 (Tex.1973). This has been termed the "nucleus of description" theory. 

"If enough appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, it will be sufficient." Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247, 248 (1955) (citations omitted).  Likewise, "if there appears in the instrument enough to enable one by pursuing an inquiry based upon the information contained in the deed to identify the particular property to the exclusion of others, the description  will be held sufficient." Templeton v. Dreiss, 961 S.W.2d 645, 658 (Tex.App.-San Antonio 1998, pet. denied). However, "a deed purporting to convey land, which describes it only by quantity and as being part of a larger tract (i.e. "25 acres out of he King Ranch"), with nothing whereby to identify what specific portion of the larger tract is intended to be conveyed, is VOID for uncertainty of description." Smith v. Sorelle, 126 Tex. 353, 358-59, 87 S.W.2d 703, 705 (1935).

San Antonio's Fourth Court of Appeals addressed the "nucleus of description" theory in a real estate case it considered in 2009. In that case, Gaut v. Daniel, 293 S.W.3d 764, 767 (Tex. App. — San Antonio 2009), the Court considered a 1990 deed conveying 28 acres in Duval County. The acreage in question was part of a larger (399.5 acre) tract, but the deed conveying the property, which purported to contain surveyor's notes, failed to identify any discernible location of the 28 acre tract.  The Court's holding:  "Because nothing identifies which 28 acres out of the 399.5 are being conveyed, the deed is void" Gaut, 293 S.W.3d at 770.

With the significant rush to obtain, break and transfer property interests, including deeds and leases, caused by the boom in the Eagle Ford shale and other oil and gas formations in Texas, sufficiency of property descriptions have become of preeminent importance. 

In an interesting case decided by the 5th Circuit appeals court in 2012, Chesapeake Exploration  unsuccessfully attempted to invalidate its agreement to purchase deep rights held by Peak Energy Corporation in certain oil and gas leases    Coe v. Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). When the price of natural gas plummeted several months later, Chesapeake refused to honor its commitment. When Peak filed suit, Chesapeake argued that the parties' agreement was unenforceable under the Texas statute of frauds and fatally indefinite based upon the flawed property descriptions. The district court disagreed, rendering judgment in favor of Peak and its principals and awarding them damages in the amount of more $19 million. This judgment was affirmed by the appeals court.

Thus, persons drafting deeds and other conveyance documents, as well as those contemplating the sufficiency of existing deed documents, must be mindful of the nucleus of description theory. 

We've Re-Located Our Offices -- Stop by and say hello!

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Trey Wilson has moved his law practice to 111 W. Olmos Dr., San Antonio, Texas 78212.  Phone, fax and email will remain the same.

Spanish Land Grant Heirs -- Jousting at Windmills?

A recent article in the San Antonio Express News about a gathering of alleged heirs of the grantees of land grants made by the Spanish crown and Mexican government hundreds of years ago really piqued my interest. My fascinations with Texas history, real estate law, and landowner rights prompted me to examine the claims of this group of descendants of families in South Texas, who assert that their long-dead ancestors never received royalty payments from oil producers operating on family property.

According to the group -- which appears to be largely represented by a single, very determined lawyer -- their ancestors died without leaving proper wills or other payment instructions for the oil companies. Thus, hundreds of millions of dollars in royalties are either unpaid by the oil producers, or have been paid, but are unclaimed and being held by the State of Texas (Comptroller) under the Texas Unclaimed Property Act. This mountain of money will remain "unclaimed," until its rightful owners can be validly identified and their entitlements to the funds proven in accordance with the Act. In order to establish their claims to the millions held by Texas, the heirs seek to have the Texas Legislature amend the Unclaimed Property Act in a way that eases a claimant's burden of proof.

My research reveals that a bill outlining the specific types of information that holders of unclaimed property must disclose was passed last Session (SB 1589), and has now been incoprorated into the Act. According to the Express News article, the families are proposing a new bill that "would set up a method by which the state can identify and qualify descendants of the original grantees using legal and historical documents as well as family genealogical research." I was unable to locate a filed bill as of this writing, but the 82nd Legislative Session is still in its early stages.

At first glance, these folks' chances of getting their hands on hundreds of millions of dollars being held by the State of Texas (who gets to keep all of the interest) seems like jousting at windmills, a la another Spaniard -- Don Quixote. I am quickly reminded of those dreamers who talk about suing Swiss banks to recover unclaimed funds, undoubtedly stolen, that Nazis deposited there and never retrieved.

But, this case might be very different. The families are represented by the same "land grant attorney" who represented some of the descendants of Padre Nicholas Balli -- a priest who held the original Spanish Land Grant to Padre island. The heirs of the good father -- who sold the island to a New York lawyer in 1938 -- won mineral rights to the island after a lengthy jury trial in 2005. The jury's verdict was upheld on appeal, but reversed by the Texas Supreme Court in 2008.

Thus, the stage is set for a very exciting effort that involves real estate, and lots of money derived from it. In the words of Quixote, "Paciencia y barajar" (Patience, and shuffle the cards). We'll be watching this one from the front row.