Defective Notarization /Improper Acknowledgment May (But Doesn't Always) Render Deed Unenforceable or Even Void

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

As an attorney practicing real estate law in San Antonio, Texas, I am frequently called upon to challenge or defend the validity of a deed transferring an interest in real estate. 

Challenges to deeds come in all varieties, and for a host of reasons. When confronted with (or asserting) a challenge to a deed's validity, it is common practice to scour the language of the deed, itself, and the circumstances surrounding its execution, for defects. 

Generally speaking, deeds are presumed to be valid, and the filing of a deed is notice to all persons of the deed's existence and contents. See Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852, 856 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.);First Sav. & Loan Ass'n of El Paso v. Avila, 538 S.W.2d 846, 849 (Tex.Civ.App.-El Paso 1976, writ ref'd n.r.e.). Further, it is a conclusive presumption of law that a proper and legal recording of a deed in the county where the land lies is constructive notice of the recorded deed's existence. Quarles v. Hardin, 249 S.W. 459, 462 (Tex.Comm'n App.1923, judgment adopted); White v. McGregor, 92 Tex. 556, 50 S.W. 564 (1899). However, there are important qualifications to this presumption, including when an improperly acknowledged deed has been placed of record. 

The recordation of a deed without a proper acknowledgment does not constitute notice. Hill v. Taylor, 77 Tex. 295, 14 S.W. 366, 367 (1890) (deed acknowledged before an associate judge in Maryland state court, but not clear if this met requisites of Texas law allowing acknowledgment outside the state). 

However, the defect in the acknowledgment must appear on the face of the acknowledgment. Titus v. Johnson, 50 Tex. 224, 240 (1878); Peterson & Fowler v. Lowry, 48 Tex. 408, 412 (1877).  

An example of a defective acknowledgment that is not facially apparent occurs when one who is financially and beneficially interested in a transaction.  By law, such persons are disqualified from taking an acknowledgment concerning the transaction. Gulf Prod. Co. v. Continental Oil Co., 61 S.W.2d 185, 186-87 (Tex.Civ.App.-Texarkana 1933), aff'd, 139 Tex. 183, 164 S.W.2d 488 (1942). However, if the instrument and the notary's certificate are regular on their face, and in no way expressly disclose the interest of the notary in the property and/or transaction, the instrument is valid to subsequent purchasers without notice of the defect. Gulf Prod. Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 493 (1942); Titus, 50 Tex. at 240; Peterson & Fowler, 48 Tex. at 412.

Another non-facial defect with a deed occurs when the Grantor did not appear in person before the Notary who acknowledged the document. For better or worse, the law is well- settled that a certificate of acknowledgment is prima facie evidence that the grantor appeared before the notary and executed the deed in question for the purposes and consideration therein expressed. Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330 (Tex.App.-Dallas 1987, writ denied); see also Stout v. Oliveira, 153 S.W.2d 590, 596 (Tex.Civ. App.-El Paso 1941, writ ref'd w.o.m.) (burden of proof is on party who denies genuineness of acknowledgment and instrument).  Again, if the Deed recites that the Grantor appeared in person (even if they didn't), this presumption is conclusive, and only "clear and unmistakable proof that either the grantor did not appear before the notary or that the notary practiced some fraud or imposition upon the grantor" will   overcome the validity of a certificate of acknowledgment.  Bell, 738 S.W.2d at 330.

Role of Texas County Clerks as Recorder of Real Property Records

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

There is often confusion regarding the nature of the role of the County Clerk as the custodian of real property records versus the custodian of court documents related to suits in the County Courts at Law. In fact, many young lawyers and inexperienced legal professionals share this confusion. 

Fact is, three distinct types of documents are filed with the County Court of any given County in Texas:  "instruments," "court documents" and "miscellaneous records."  I generally define these document types  as follows:  

• Instruments are "recorded," and are generally public records such as deeds, liens and judgments. Many of these instruments deal with the conveyance of ownership in real property, including Deed records, deeds of trust, liens, and abstracts.

• Court documents are the judicial records (pleadings and Orders) related to cases litigated in the County Courts of a given texas County. They are usually "filed," but not recorded.

• Miscellaneous records, such as birth certificates, death certificates, certain financing statements and marriage licenses.  These records are maintained in accordance with the Texas Constitution (Art. V Sec. 20), which mandates that the elected County Clerk of each county shall be the "recorder of the county."

For purposes of real property records,  Chapter 12 of the Texas Property Code largely governs the requirements of documents to be recorded with the County Clerk.  

For example, a County Clerk may not record an "instrument conveying real property" unless the instrument is (1) signed; and (2) acknowledged or sworn to by the grantor in the presence of two or more subscribing witnesses or (3) acknowledged or sworn to before and certified by an officer authorized to take acknowledgments or oaths. 

Similarly, but still distinctly different, an "instrument concerning real or personal property" may be recorded only if the instrument has been (1) acknowledged; (2) sworn to with a proper jurat, or (3) proved according to law.  NOTE:  An acknowledgment and a jurat are not the same thing. "A jurat is a certificate added to an affidavit stating when, before whom, and where it was made, while an acknowledgment is a declaration of fact to give it legal validity." 

Another example of a recording requirement is that all instruments must be in English, and a deed, mortgage, or deed of trust that transfers an interest in real property to or from an individual must include a confidentiality notice.

Upon determining that an instrument should be accepted for filing, the county clerk is required to -- without imposing additional requirements -- actually accept the instrument by taking physical possession of the instrument, and collecting applicable fees.  These days, Clerks in some counties will scan the original instrument, index it and return it to the person requesting the recording.

Once the clerk has actually accepted the instrument and the appropriate filing fee has been collected, the instrument is considered to be filed. At that time, it is assigned a unique number which is stamped or written on the original instrument for the purpose of identification. An instrument is considered to be a public record at the time the instrument is filed.

Evidence that a given instrument was filed at a certain date and time is created by the county clerk's act of noting the date and time of filing "at the foot of the record" by placing what is known as a "file stamp" or a "file mark" on the instrument. 

For every type of instrument that the county clerk records, he or she must maintain an index so that individual instruments may be located alphabetically by the last name of the parties. The index must state the specific location in the records at which the instrument is stored. The clerk must generally maintain at least one index for real property instruments and another index for all other instruments. Individual instruments are indexed. 

NOTE:  The information on this post was taken largely from the County Clerk Procedural Manual published by the Texas Office of Court Administration.

Amicus meus, inimicus inimici mei (“my friend, the enemy of my enemy”) -- Especially When that Enemy is a Vexatious Litigant

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

I usually limit my posts on this blog to scholarly discourse and news coverage of real estate-related legal issues and developments.  On rare occasion, I will share personal experiences from a case in which I am involved. 

One such post appeared here on September 8, 2013, and was entitled "Paranoid, Fantastical Conspiracy Suits Over Zuehl Fence/Easement Dormant for Now."  Remarkably, that entry received the 2nd most unique "hits" of any post made on this blog (232 as of this morning). That means 232 different people (or at least different computers/devices) read that post. Honestly, I'm not sure how I feel about that, since most of my entries require some degree of scholarship or creativity (or both). Heck, sometimes I even post what some would consider "free advice" or "free blueprints" for legal procedures. In any event, the Zuehl post offered neither scholarship nor free legal work, but was still better-read than most of my other entries.

Suffice it to say that my representation of the Zuehl Airport POA has been very "interesting." It is no secret to my client, the numerous courts (everywhere from Seguin to El Paso to New Orleans) that have entertained the Zuehl litigations, and/or to the various opposing counsel, that the collective Zuehl disputes have been dubbed (and are now referred to as) "Internecine warfare."   Indeed, the litigants are engaged in an internal conflict that has been destructive (financially, at a minimum) to all sides.

While Wikipedia isn't always the best or most accurate source, its commentary about internecine warfare (under the search query for "Civil War") is particularly apt when considering the Zuehl Airport: 

The terms internecine war and domestic war are often used interchangeably with "civil war", but "internecine war" can be used in a wider meaning, referring to any conflict within a single state, regardless of the participation of civil forces. Thus, any war of succession is by definition an internecine war, but not necessarily a civil war.

As far as wars go, the ones at Zuehl haven't been very civil at all. At times, there has been a complete lack of civility -- even in open court. This is particularly true when a certain Pro Se litigant has been involved. This individual (who shall continue to remain unnamed in this blog) has not only routinely been involved in lawsuits with my client, but has also sued the Guadalupe County District Clerk, Sheriff, Appraisal District/Tax Assessor, and even me for various perceived misdeeds, including racketeering. Among other things, accusations have been made that judges in Guadalupe and Bexar counties are corrupt, that the Guadalupe County Sheriff's office is a machinator, and that even the U.S Marshal's Service is in on some conspiratorial plot.

But, apparently the officials tangentially related to the Zuehl fence and roadway dispute aren't the only ones whom my unworthy foe likes to accuse and antagonize.  Even more shocking is that fact that -- as contentious as the Zuehl suits have been -- someone completely unrelated to Zuehl has finally told this guy what all the rest of us (and I am somewhat confident that I'm not just "speaking" for myself) have wanted to say for so long.

Today I learned of a media report that a New Braunfels, Texas City Councilman had grown so weary of the absurdity and obnoxiousness emanating from this individual that the good councilman finally told him to "F  OFF" -- and multiple times in official City emails, to-boot. 

After a short on-line search, I found an article in a publication called the txcitizen entitled "1st Word: Warning Explicit Content." The article, reported by Mike Reynolds, contains lots of juicy details related to yet another contentious relationship sowed by everybody's favorite pro se litigant. 

Before reading the article -- which is somewhat entertaining and pretty well written -- I had no idea that a whole other governmental body in a whole other County (namely the City of New Braunfels in Comal County) had found itself in the same vexatious sights of the same antagonist as did the County of Guadalupe. In fact, it seems like the New Braunfels battle has persisted for quite some time. 

If you're one of the many who read my post from September 8th, you'll probably enjoy Mr. Reynolds' report. I know I did. 

And while I know nothing of New Braunfels politics or the (now former) councilman who was pushed too far, I do know that I would like to buy a beer for the guy who was ballsy/dumb enough to do what I have wanted to for years. 

It must be liberating to not be restrained by decorum and the rules applicable to lawyers....

New TAR Forms for Residential Leasing, Management, Seller's Disclosures and Others Take Effect on January 1, 2014

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

The Texas Association of Realtors has revised many of its existing forms and released other new ones, which take effect Jan. 1, 2014. Among the revised and new residential and property management forms are:

•  Residential Lease – TAR 2001
• Residential Lease Application – TAR 2003
• Pet Agreement – TAR 2004
• Extension of Residential Lease – TAR 2005
• Residential Lease Inventory and Condition Form – TAR 2006
• Residential Lease for a Multi-Family Property Unit – TAR 2011
• Residential Leasing and Property Management Agreement – TAR 2201
• Addendum for Authorization to Act for Owner Before Owners’ Association – TAR 2205
• Notice Terminating Right of Occupancy – TAR 2208
• Notice to Tenant of Change in Management and Accountability for Security Deposit - TAR 2210
• Model Tenant Selection Criteria Form  
• Early Termination of Residential Lease – TAR 2012
• Notice of Termination of Residential Leasing and Property Management Agreement – TAR 2222
• In addition, the Agreement for Application Deposit and Hold on Property (TAR 2009) has been removed from the TAR Forms Library.

A summary of the changes can be found HERE.

Headquartered in Austin, the TAR is the state-level organization for REALTORS® in Texas. It was established in 1920 and has grown to more than 80,000 members. TAR is the largest professional-membership association in Texas. 

When is a Writing or Defective Deed "Good Enough" to Convey Real Estate in Texas?

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Many times, real estate lawyers (in San Antonio, TX and elsewhere) are called upon to opine on the validity and effectiveness of less-than perfect writings intended to grant/transfer/convey interests in land. These documents come in all shapes and forms -- from template documents missing essential details, to scribbled writings on the back of beer coasters.  Irrespective of the form of such a writing, the analysis of whether they are "good enough" to convey ownership falls upon their substance, as judged by  somewhat mundane criteria prescribed by two Texas statutes.

To validly convey an interest in land, a document (including a contract for the sale of real estate, a Contract for Deed, a deed, and/or any other writing) must satisfy the requirements of both the "statute of conveyances" (located at Texas Property Code section 5.021), and the "statute of frauds" (located at Texas Business and Commerce Code section 26.001). 

To be enforceable and comply with the statute of frauds, a document purporting to transfer/grant/convey an interest in real property must be in writing and signed by the person to be charged with the agreement. TEX. BUS. & COM.CODE ANN. § 26.01(a), (b)(4) (Vernon 2009); Cate v. Woods, 299 S.W.3d 149, 152 (Tex.App.-Texarkana 2009, no pet.). 

To convey an interest in land under the statute of conveyances, the instrument of conveyance must be in writing, must be signed, and must be delivered by the party disposing of his interest. TEX. PROP.CODE ANN. § 5.021 (Vernon 2004); Thompson v. Clayton, 346 S.W.3d 650, 656 (Tex.App.-El Paso 2009, no pet.); McDaniel v. Carruth, 637 S.W.2d 498, 505 (Tex.App.-Corpus Christi 1982, no pet.).

In essence, the instrument conveying the land must contain the essential characteristics of a deed. See TEX. PROP.CODE ANN. § 5.021; see Green v. Canon,33 S.W.3d 855, 858 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). There is, however, no longer a requirement that a deed or instrument to effect the conveyance of real property must have all the formal parts of a deed recognized at common law or technical language. Green, 33 S.W.3d at 858; see also Marrs & Smith, P'ship, v. D.K. Boyd Oil & Gas Co., No. 08-00-00386-CV, 2002 WL 1445334, at *5 (Tex.App.-El Paso July 3, 2002, no pet.) (not designated for publication). 

Rather, if (1) from the instrument as a whole a grantor and grantee can be ascertained and (2) there are operative words or words of grant showing an intention by the grantor to convey to the grantee title to a real property interest, (3) which is sufficiently described, and (4) the instrument is signed and acknowledged by the grantor, then the instrument of conveyance is a deed that accomplishes a legally effective conveyance. Green, 33 S.W.3d at 858; Marrs & Smith, 2002 WL 1445334, at *5.

Language in an instrument that contemplates future action is not language that contemplates a completed transaction in land. See Green, 33 S.W.3d at 859 (holding attempted gift of land invalid where contemplated future action evidenced "an intent to make a gift in the future rather than a completed gift"); see also Marrs & Smith,2002 WL 1445334, at *6 (finding that agreement purportedly conveying interest in land did not evidence present intent on part of alleged grantor to convey interest in land where agreement contemplated obligation to convey interest upon occurrence of specific future event).