03. Real Estate
Real Estate Transactions
Whether you are involved in a commercial or residential real estate transaction, there are many complexities that can arise. The main priority in every real estate transaction is protecting your rights, explaining your obligations, and attempting to prevent future disputes from arising. From drafting the earnest money contract, preparing the real estate documentation or closing the transaction, we will make sure you are protected and getting the most out of your real estate transaction. A few of the different kinds of real estate transactions are:
Earnest Money Contract: Most real estate transactions involve an earnest money contract. An earnest money contract is a contract between buyer and seller and lays out the terms of purchasing property. An earnest money contract typically goes through a title company, who performs a title search to ensure that the buyers are receiving clear title to the property. Our firm has a full service title company that can assist you, as the buyer or the seller, in the buying or selling of your property.
Deeds: there are simple ways of transferring property from one individual to another individual and that is through a deed. There are different types of deeds that provide different levels of warranties.
General Warranty Deed: A General Warranty Deed is the highest level of warranty and provides that the Grantee is receiving clear title to the property free and clear of any encumbrances and claims. A General Warranty Deed is the preferred form of deed because it contains both express and implied warranties.
Special Warranty Deed: The next highest level of warranty is a Special Warranty Deed, under which the Grantor is assuring the Grantee they are receiving clear title to the property from the Grantor's ownership of the property. It does not provide protection for claims arising prior to the Grantor's ownership.
Quitclaim Deed or Deed Without Warranties: Next there is a transfer of title without warranties or a Quitclaim Deed. These deeds do not provide any warranties to the Grantee and typically not accepted by title companies.
Transfer of Death Deed: A Transfer on Death Deed is a deed that transfers the ownership of the property upon someone passing. A Grantor signs a deed transferring their ownership upon their death to their intended beneficiaries and avoids probate.
Seller Financed or Third Party Financed: Most real estate purchases involve borrowing money from a bank or mortgage company to finance the purchase of the property. Individuals can also provide financing to a buyer. Typically, a Deed, Deed of Trust, and Real Estate Lien Note are involved in a lender financed Transaction.
When a buyer is not paying on a loan that is secured by real estate, the lender has different remedies available to them to get paid on their loan; one of those remedies is a foreclosure. There are two different types of foreclosures:
(1) Non-Judicial: A non-judicial foreclosure is used when a power of sale clause exists in a mortgage or Deed of Trust. A "power of sale" clause is the clause in a Deed of Trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In Deeds of Trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. To properly foreclose on the borrower and to avoid an improper foreclosure, the Texas Property Code states a number of provisions that need to be followed, such as proper notices and postings. Additionally different steps need to be taken depending of whether the property is a homestead, residential or commercial. To ensure you follow foreclosure requirements, it is best to speak with a real estate attorney.
(2) Judicial: A judicial foreclosure is used when a power of sale is not present in a mortgage and involves a lawsuit to obtain an order from the Court to allow the property to be foreclosed on.
There are ways to stop and avoid a foreclosure. One way to stop a foreclosure is a Forbearance Agreement. A Forbearance Agreement is an agreement between the lender and the borrower to delay a foreclosure sale. In most agreements, the lender is providing the borrower with additional time in exchange for something. Instead of a foreclosure sale, a borrower can also sign a Deed-in-Lieu of Foreclosure, which the borrower deeds the property back to the lender.
An eviction is a judicial process to allow an owner of real property to regain possession of it. This suit is also referred to as a Forcible Detainer or Forcible Entry and Detainer. In an eviction suit, an owner can also be granted a judgment for unpaid rent, attorney's fees and court cost. Evictions are governed by the Texas Property Code and require proper notices to be given to the individuals occupying the property. Depending on the type of occupancy, different laws govern the proper way to evict an individual from the property and what other remedies you may have available to you.
A Partition is a division of property among joint owners. A partition can be voluntary or a judicial remedy for joint owners who disagree on what to do with the land. When a partition is voluntary, the co-owners of the property agree on how to divide the property among each other. When co-owners cannot agree on how to voluntarily divide a property they can bring a partition suit. There are two different types of partition suits in Texas:
(1) Partition in Kind: a Partition In Kind is asking the Court to divide the property among the owners. The division of property among owners does not always end with equal shares in the land. One acre on a piece of property might be substantially more valuable than another acre on that same property. Usually, if a physical division of the property by metes and bounds cannot be equal, then the property can be partitioned by sale.
(2) Partition by Sale: a Partition by Sale is asking the Court to order the property to be sold because the property cannot be successfully or equally divided among the joint owners. Once the Court orders the sale of the property and the property is sold, the profits will be distributed equally among the joint owners.
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The ins and outs of real estate can be very difficult to understand, so having an experienced Real Estate Attorney to help you is important. Thomas G. Bassler was recently named as one of the top real estate attorneys in San Antonio, by San Antonio Magazine and Expertise. Allow him and our firm assist you in all of your real estate needs.