All Texas Deeds Contain Implied Covenants/Warranties Unless Expressly Disclaimed

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In previous posts on this blog, I have explained the difference among the most common types of deeds used in Texas. 

While some instruments (typically General Warranty Deeds) expressly provide certain warranties about the marketability of the Grantor's title, ALL deeds and other conveyance instruments that contain the words "grant" or "convey" are also deemed by Section 5.023, Texas Property Code, to contain  implied covenants by the grantor to the grantee.

By law, it is implied by he Grantor that: (i) the grantor has not conveyed any interest in the property to any other person (other than the grantee); and (ii) that, at the time of execution of the conveyance instrument, the property is free from encumbrances (i.e. taxes, liens, assessments, etc.). 

Most importantly, these implied covenants, by law,  may "be the basis for a lawsuit as if [such covenant] had been expressed in the conveyance."  That's right!  These implied covenants -- even if never expressly made or stated by the grantor -- give rise to liability on the Grantor's part if they turn out to be untrue. See Tex.Prop. Code Section 5.023(b).

Fourth Court of Appeals: Mother's Transfer of Land to Sons Included Mineral Interests, Even if Never Discussed

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In an opinion issued in mid-February 2015, San Antonio's Fourth Court of Appeals rejected an elderly mother's claims against her sons related to deeds she executed 12 years earlier. The deeds -- executed in 2000 -- granted to the sons, respectively, parcels of rural property, but made no mention of mineral interests. That is there was neither an express grant nor reservation of the minerals contained in the deeds. 

By the time she filed suit in 2012 (12 years after the deeds were executed), mom decided that she did not intend to convey the minerals -- or at least that she regretted doing so. Notably, the properties are located in the booming Eagle Ford shale play of south Texas by the time of suit, but no mineral activity had occurred on the property at the time that the deeds were granted.

Although the case largely turned on the timeliness of mom's suit for breach of fiduciary duty (i.e. whether the claim was barred by limitations), the Court correctly noted that the deeds' silence as to minerals resulted in all of the surface estates and the mineral interests owned by mom transferred to the sons under Texas real estate law. See Cockrell v. Tex. Gulf Sulphur Co., 157 Tex. 10,  299 S.W.2d 672, 675(1956) (“[I]t is fundamental that a warranty deed will pass all of the estate owned by the grantor at the time of the conveyance unless there are reservations or exceptions which reduce the estate conveyed.”). Thus, even though mom and her sons never discussed or considered the mineral interests at the time of the conveyance, they were conveyed under the deed because it did not expressly reserve mineral rights. 

The complete opinion, rendered in Mary Moczygemba v. Thomas and Harry Moczygemba, can be found here. 

Requirements for a Valid and Recordable Deed in Texas

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Having litigated numerous disputes over title to land and/or real estate purchase contracts, I have encountered all variety of "deeds" purporting to convey some interest in real property in Texas.

Some of the more interesting of these "deeds" are hand-written or obvious 'cut and paste' jobs taken from the Internet.  Some were recorded, others not. Many failed because they lacked sufficient information to meet even the minimum standards for deeds under Texas law.

In Texas, Deeds for the conveyance of real estate are not required to take any particular format.* However, in order for a deed to be legally valid and recordable in Texas, it must meet several basic criteria:

• be in writing (TPC 5.021, Tex Bus & Comm Code 26.01)
• be signed by the grantor (TPC 5.021, 12.001)
• be acknowledged or sworn to by the grantor before two credible witnesses, or a notary public, who also sign the document (TPC 12.001
• be in English  (TPC 11.002)
• contain all grantees' addresses (TPC 11.003)
• include within itself or by reference to another existing writing, the means or data to identify the particular property with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945). See also Kmiec v. Reagan, 556 S.W.2d 567 (Tex. 1977); Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983); Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972).
• be delivered to and accepted by grantee (the grantee need not sign the deed)

* There is a statutorily-suggested format for a general warranty deed in Section 5.022 of the Texas Property Code.

If you are a party to a real estate transaction in which the deed fails to meet these criteria, or may otherwise be invalid or fraudulent, you should seek the assistance of an experienced real estate lawyer. Texas law provides stiff civil (and possibly even criminal) penalties for real estate fraud. In other instances, failed conveyances can be corrected.