Sword of Justice: San Antonio Attorney Trey Wilson - Real Estate Law, Water Law, Litigation

11 Ridiculous Laws Still on the Books

2011-12-21T15:46:00.002-06:00

From Reader's Digest

See a slideshow of 11 ridiculous, antiquated or downright strange laws still in effect today.

Happy Reading!

R L Wilson Law Firm-Sponsored Bobcats Win McAllister Park Softball Championship

2011-06-10T20:12:00.001-05:00

Congratulations, Girls!

Cost and Fee-Shifting in Texas Adverse Possession Cases

2010-08-27T00:28:00.001-05:00

There is little doubt that adverse possession lawsuits can be costly. Litigants to these title disputes -- where the key evidence is necessarily historical and often pre-dates current ownership of a given property -- frequently incur substantial expense in surveys, document searches, depositions of prior owners, expert witnesses and title searches. Naturally, a real estate lawyer's time associated with weaving or undermining a credible claim for ownership which is contrary to "legal title" as it appears in the deed records can also translate into significant attorneys' fees. Thus, property owners with boundary disputes often inquire about the possibility of recovering their costs and attorneys' fees in the event that the prevail in an adverse possession case.

For all its criticism, the Texas Legislature has generally been sensitive to the sanctity of land ownership in Texas. For that reason, it enacted Section 16.034(a) of the Texas Civil Practice and Remedies Code to allow the Court (in its discretion) to award costs and reasonable attorneys' fees to the prevailing party in a suit for the possession of real property where one party is "claiming under record title to the property and one claiming by adverse possession." TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, this grant of discretionary authority for trial courts to award fees didn't have much of an impact on the number of adverse possession suits, including those where claims of ownership by adverse possession were simply frivolous.

To address this concern, statutory revisions were made in 2009, and Section 16.034(a) now requires the trial court to award attorney’s fees “if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith, . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (Vernon Supp. 2009).

The issue of unlawful possession is still part and parcel of the availability of attorney’s fees under section 16.034(a). TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a). However, under the statutory revisions, the presence of these elements, together with a finding of bad faith, frivolity and/or groundlessness will necessarily result in the shifting of costs and attorneys' fees.

When considering whether to litigate a trespass, title dispute or adverse possession claim, a landowner shouldn't count on having the opposing party pay his or her attorneys' fees. However, given the 2009 revisions to Section 16.034(a), the frequency of such recovery in those cases involving groundless claims of adverse possession seem much better.

City Appeal Fails to Overturn Order Blocking Apartment Demolition

2010-08-19T08:24:00.000-05:00

On August 18, the Fourth Court of Appeals upheld a Bexar County trial court's issuance of a temporary injunction preventing the City of San Antonio (COSA) from demolishing an apartment complex undergoing renovations.

COSA appealed the issuance of the injunction, and the trial court's denial of its plea to the jurisdiction on grounds that the Plaintiff -- a bank who had provided over a half-million dollars in financing for the apartment's new owner's purchase and renovation efforts -- lacked standing to challenge the planned demolition. In essence, COSA asserted that the Bank, as a mere lender and not owner of the complex, lacked sufficient interest in the property to challenge the City's previously-issued demolition order.

In an opinion authored by Chief Justice Catherine Stone, the San Antonio Appellate Court found that the bank -- as an innocent lender -- maintained standing under the Warranty Deed and Deed of Trust to seek Court declarations of its rights (vis-a-vis the City) under those documents. The Fourth Court also determined that because COSA failed to file a copy of the demolition order in the Official Public Records of Real Property, notice of the impending demolition was not imputed to the bank, and the injunction preventing demolition was proper.

Based on the foregoing, the trial court's injunction order was affirmed.

Towing companies sue Wilson County Over Failed Contract Bids

2010-05-22T07:09:00.001-05:00

Six towing companies have filed a lawsuit against Wilson County after the Commissioners Court awarded an exclusive towing contract to a single vendor last month.
The lawsuit, filed May 11, names all four Wilson County commissioners as defendants, in addition to County Judge Marvin Quinney and Rick's Towing Service Inc., the company picked to do those county's nonconsent tows, dispatched through the sheriff's department, starting May 1.

Read the entire San Antonio Express News story Towing companies sue Wilson County here.

Texas Attorney General Abbott sues TaxMasters

2010-05-22T07:04:00.000-05:00

Texas Attorney General Greg Abbott has filed a deceptive trade practices act lawsuit claiming that Houston-based TaxMasters Inc. offered distressed taxpayers in Texas and other states help through a nationwide advertising and marketing campaign. According to the suit papers, the company charged fees, but often did not complete work until deadlines passed, forcing taxpayers to be penalized by the Internal Revenue Service.

Read the whole story here: Abbott sues TaxMasters CEO | Southeast Texas Record

Lehrmann gets GOP nod for Texas Supreme Court

2010-04-14T07:39:00.000-05:00

In a run-off election for the Republican party's nominee for a seat on the Texas Supreme Court, voters selected family law judge Debra Lehrmann over Dripping Springs lawyer Rick Green.

Read the full story in the Austin American Statesman: Lehrmann gets GOP nod for Supreme Court

Fitness company sues mother of drowned boy

2010-04-12T11:02:00.001-05:00

Life Time fitness goes on the offensive in the wake of suits following the drowing of a young boy at an Austin gym. The family were not members of the gym, and have been accused of trespassing at the time of the drowning. Read the full story in the Austin American Statesman: Fitness company sues mother of drowned boy

Bexar County JP Courts going all electronic

2010-03-09T21:23:00.001-06:00

The Bexar County Justice of the Peace Courts have implemented an automated case management, scheduling and document filing system that is designed to improve staff productivity and streamline workflow.

The new software programs were developed by Herndon, Va.-based AMCAD. The suite of programs includes AMCAD’s integrated Case Management System (AiCMS) and the AMCAD integrated Capture System. The new system will allow for electronic citation issuance and electronic filing of truancy cases. It also will make possible remote access for the public to view case and calendar information.

In addition, AiCS provides access to documents electronically, eliminating the need to transfer paper between locations.

“Bexar County is AMCAD‘s first AiCMS installation in the state of Texas,” says Visagar Shyamsundar, AMCAD‘s chief operating officer. “We are very excited and committed to providing a state of the art technology solution that will improve the courts operations and provide better service to the people of Bexar County.”

Bexar County is the 20th largest county by population in the United States.

San Antonio Business Journal

Judge approves Hill Country Galleria sale | The Real Deal

2010-01-28T22:29:00.000-06:00

Judge approves Hill Country Galleria sale | The Real Deal

New Braunfels Residents fight rock crushing plant

2010-01-14T07:48:00.002-06:00

Bucky Smith has fought, and lost, this battle before.

She has owned a home on five acres of brush off Krueger Canyon Road just west of New Braunfels since the late 1950s — property that today backs up to what is now cement giant CeMex’s Balcones Plant.

When her noisy new neighbors first moved next door under a different owner in the late 1970s, the daily blasting of limestone would carpet her home in a layer of dust, with an occasional chunk of fragmented rock sent crashing through her ceiling and into her living room.

“It was just awful, and we tried fighting it, but it didn’t do any good,” she remembered. “It took a long time for us to find out that there’s no recourse if someone really wants to build something like that next to your property.”

Thirty years later, some of her neighbors might be learning the same lesson.

Aggregate Industries, a subsidiary of Swiss-based global cement supplier Holcim, has applied for an air quality permit from the state to allow it to build a rock-crushing plant among the live oaks off Farm-to-Market 482, within a mile of Smith’s home.

And like she did decades ago, her neighbors are doing whatever they can to stop its construction.

A group of citizens from the area petitioned the Texas Commission on Environmental Quality requesting a hearing to contest the granting of Aggregate’s permit, citing the potential impact from the plant’s emissions on everything from water and air quality to the health of children attending Comal Elementary School.

On Wednesday, TCEQ commissioners ruled that such a hearing should be held to gauge the impact of the plant’s construction on “affected” residents — those, like Smith, who live within one mile of the proposed plant site.

At the request of TCEQ, the hearing will be held by the State Office of Administrative Hearings within the next nine months.

“I think that’s a good thing and I’m glad we’re going to have a hearing,” said State Senator Jeff Wentworth, who also requested the hearing because of the potential adverse affects on the environment and health of local residents.

Ultimately, if Aggregate can prove its emissions won’t have a substantial impact on the environment or residents, a new plant will soon be crushing limestone in western Comal County.

“We’ve got to follow the law, and if they’ve followed the law and can get a permit, they’re going to be entitled to do business in Texas like everybody else,” Wentworth said.

The reason residents can only fight the construction of a new rock-crushing plant or quarry through the state is that county commissioners have little to no authority over land-use — control both Wentworth and Comal County Commissioners have lobbied for for decades.

“I’ve been talking about that for about 25 years,” said Wentworth, a former Bexar County commissioner. “We’ve made some progress, but in relation to not allowing a business, like the one subject to this application, we’ve not given them that kind of authority.”

As such, the only recourse available is to do what Comal residents are doing, asking the state to deny permits.

And while a state hearing now will decide the fate of the proposed plant, Smith said she’s seen it all before, and that her neighbors may as well welcome their new neighbors.

“You can fight like hell, but it won’t do any good,” she said. “I guess it’s one of those necessary evils, you know, for progress.”

Chris Cobb, New Braunfels Herald-Zeitung

Fired? Former Employer May Profit from your Death: You could end up a 'dead peasant'

2010-01-11T06:17:00.002-06:00

HOUSTON — Irma Johnson never really thought of herself as a crusader.

But the quiet widow from The Woodlands has been featured in a Michael Moore movie, watched her story retold on “Good Morning America” and is trying to let others know that their employers may have purchased secret insurance policies on their lives and stand to profit handsomely when they die.

The industry darkly refers to the policies as “dead peasant” life insurance.

And but for a post office error, Johnson might not have learned that when her husband, Dan Johnson, died of brain cancer in 2008, the bank that had fired him years earlier got $4.7 million in insurance proceeds on his life.

After accidentally destroying an envelope containing a check for nearly $1.6 million made out to Amegy Bank, the post office misdirected it to Johnson's home because Dan Johnson's name also was on the check.

Her attorney, Mike Myers of McClanahan Myers Espey in Houston, said she wasn't supposed to know Amegy had the insurance policy on her husband, a project manager whose annual salary had been about $70,000.

“How could they be profiting off my husband?” Johnson asked recently during an interview with the Houston Chronicle.

Friday, Johnson settled a lawsuit she filed to force the bank to reveal it bought policies in 2001 on more than 40 bankers, including coverage on Johnson, who'd been diagnosed with terminal brain cancer about 18 months earlier and been out sick for several months.

She was asking for the net proceeds Amegy received, $3.8 million— the death benefit minus the premiums it paid — and settled for an undisclosed amount.

“We settled to the mutual satisfaction of both parties,” Amegy Bank spokeswoman Leigh Akin said.

In Amegy's formal response in the lawsuit, the bank said it purchased life insurance policies on a group of vice presidents and other officers to offset the cost of providing employee benefits.

Amegy said taking out such policies is a “common practice among banks and other industries and is recognized and permitted by the applicable banking regulatory authorities.”

The policies were voluntary, the bank noted, and Dan Johnson understood he'd be covered indefinitely, even if he left the bank.

Banks have purchased hundreds of billions of dollars of “bank owned life insurance” on the lives of their employees. The policies typically remain in effect years after an employee leaves the bank, Myers said.

Myers said banks receive significant tax advantages on the policies. They can write off the interest they pay on loans to buy the insurance; money invested in the policies grows tax deferred; and if the insured person dies, the death benefit is tax-free.

“It's a very significant investment return for a company in the 40 percent tax bracket,” said Myers, one of the lawyers who sued Wal-Mart over its dead peasant policies and ended up settling for $15.4 million for surviving family members in Texas and Oklahoma. Cases in other states still are pending.

“There are probably a lot of former Amegy employees who are walking around right now who are worth millions of dollars dead to Amegy and they don't know it,” Myers said.

U.S. Rep. Gene Green, D-Houston, charges that companies buy the policies solely for the tax advantage. He's been pushing a bill that would remove the incentive.

“If you don't have an insurable interest in someone, it's an investment,” he said, and should be subject to regular income tax.

Green also regularly files a bill that would force employers to disclose amounts and beneficiaries of such policies. But the legislation hasn't been a front-burner issue as Congress has wrestled with health care reform, a turbulent economy and other priorities.

Dennis Nixon, chairman and president of Laredo-based International Bancshares Corp., defended the use of bank-owned life insurance policies. A bank employee can generate significant benefit costs over the length of their employment, he said, so the policies can help pay for those costs.

“People who participate in those programs consent to those programs,” Nixon said. “Most people are not concerned about it because it doesn't cost them anything.” He called the practice “as common as street addresses.”

Nixon didn't know how many policies International Bancshares has purchased on its employees' lives, but added he wouldn't disclose the number even if he did know.

Dan Johnson was diagnosed with cancer in 1999 and had to learn to speak and to walk again following operations to remove his tumor. By 2001, he was getting warnings that his once-stellar job performance was suffering and was demoted to a nonsupervisory position, according to the lawsuit.

A few months before he was fired in 2001, Johnson was told that he was eligible to receive extra life insurance, Myers said. If he died or was disabled while working at the bank, his wife would receive $150,000.

What wasn't said in the consent form, according to Myers, was that the bank would receive 67 times Johnson's annual salary. That was material information Amegy should have disclosed to its terminally ill employee, Myers argues.

Myers said he also believes the consent form wasn't valid because the bank bought the policies before obtaining permission from Johnson, and that when it did, he wasn't of sound mind.

Amegy said in its filing that it believes Dan Johnson understood the consequence of his actions. It also said he agreed not to sue in the future in exchange for settling a disability complaint he filed with the Equal Employment Opportunity Commission after his termination.

Irma Johnson, a mother of two young boys, said she was perplexed when she opened the envelope with the big check inside just before Christmas 2008 and called the insurance company. She quickly learned the policy wasn't meant for her. Nor did she ever receive the $150,000 portion that she thought she had coming to her.

Her story was featured last year in “Capitalism: A Love Story,” filmmaker Michael Moore's critical examination of U.S. economic practices.

What's especially upsetting, Johnson said, is that her husband couldn't buy life insurance to protect his own family once he found out about his cancer. Yet his employer could, she said.

“To let him go,” she said, shaking her head, “and then to cash in on him like that.”

By L.M. Sixel - Houston Chronicle

Court of Appeals Upholds Eviction and Award of Attorneys' Fees

2010-01-10T20:37:00.003-06:00

In its January 6, 2010 opinion in McDonald v. Claremore Apartment Homes, the Fourth Court of Appeals (San Antonio) upheld the Judgment of Eviction entered by Judge Paul Canales, sitting in the Bexar County Court at Law No. 5.

The Appeal involved claims by McDonald that the trial court erred in determining that she had not paid rent for several months in 2008, and that the attorneys' fees awarded to Claremeore were improper.

In overruling McDonald's claim, the Court of Appeals approved Canales' rejection of receipts from 2007 to indicate payment of rent in 2008. The Court also determined that uncontroverted testimony by Claremore's attorney concerning the number of hours spent handling the forcible entry and detainer action satisfied the Texas Property Code's requirements for awarding attorneys' fees to a prevailing landlord.

The opinion was authored by Justice Speedlin.

When Is the Seller of Real Estate Liable for Misrepresentations Regarding Restrictions on Use?

2010-01-08T16:45:00.007-06:00

As a San Antonio lawyer with an active real estate litigation practice, I'm often confronted with scenarios under which a Seller has assured a Buyer of real property that the property is acceptable for the Buyer's intended use.

There are all kinds of scenarios under which these types of representations are made. Some memorable situations I've encountered relate to use of residential property for commercial purposes, construction of certain facilities on the property, the right of the owner to maintain various animals (pit bulls and horses come to mind), and the existence or non-existence of restrictive covenants.

In some situations the Sellers are clearly misinformed or ignorant about whether the Buyer's proposed activities are permissible -- "Sure , you can use the property for anything you want!" These representations are often made without much thought or consideration of the consequences. Other times, Sellers or their agents knowingly make false representations for the purpose of inducing the Buyer to purchase the property. In both situations, Buyers frequently rely on these pre-sale representations to their own detriment.

I'm frequently asked to explain when the Seller liable for these types of misrepresentations about real estate, and when a Buyer be responsible for his own decision to rely on the Seller's representations.

The Answer to this question is not a simple one, and can differ significantly based upon the facts and circumstances surrounding the transaction and the property in question.

Under Texas caselaw, a very simplistic distinction and determination of liability is often tied to the following:

1. Whether the Seller knew facts that were unknown to the Buyer.
2. Whether the Buyer actually relied on the Seller's representations.
3. Whether the Buyer undertook an independent investigation (through inspection, examination, attorney review or even the purchase of a title policy) of facts that may have been covered by the Seller's representation.

The 3rd of these factors -- independent investigation -- is somewhat important. In the context of real estate sales in Texas when a seller makes an affirmative representation, the law imposes a duty upon the seller to know whether such a statement is true. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76 (Tex.1993). However, when a Buyer undertakes his own investigation -- regardless of the result --the buyer's decision to undertake such an investigation indicates that he or she is not relying on the seller's representations about the property.

Even in these instances, however, Sellers can be liable for intentionally fraudulent representations, or for facts that could not have been discovered by the Buyer through his own investigation.

Another avenue of potential recovery for a duped Buyer lies with the persons or entities who participated in the Buyer's investigation -- title examiners, attorneys, real estate agents and others who should have but did not discover restrictions on the property's use. Reliance on a title committment issued by a title insurance company and/or on an opinion by an attorney are sometimes easier to prove than reliance on a Seller's representations about the property.

If you are the Buyer or Seller of real estate, you should be careful to fully examine all facts surrounding the property, to conduct a reasonable and diligent investigation, and to limit your affirmative representations to the opposing party. Both Buyers and Sellers of real property are encouraged to involve a licensed Texas attorney experienced in real estate transactions and disputes.

Pending Home Sales Post Record Plunge in November

2010-01-05T11:07:00.000-06:00

Pending home sales unexpectedly plunged in November, according to a report issued Tuesday by the National Association of Realtors, posting their largest drop on record after several months of positive gains for a closely-watched indicator of housing market activity.

According to the industry group, November pending home sales activity dropped by 16% to a reading of 96.0, compared with the previous month’s reading of 114.3. The drop was much larger than expected by Wall Street, which was looking for a dip of 2% for the indicator for November.

It was the largest drop, point-wise, since the industry group started the index in 2001, dragging the indicator to its lowest level since June.

NAR officials said the drop was related to a decrease in sales activity as the original Dec. 1 deadline for the first-time home-buyers tax credit approached. Pending home sales are contracts signed, meaning it could take several months for a home buyer to finance and finish the transaction. A November home buyer may have been too late to qualify for the original deadline.

The U.S. government extended in November the $8,000 tax credit to a new deadline of April 30, in response to industry and consumer pressure. Housing market sales have risen 15.5% from a year ago, which many believe is primarily related to the tax credit.

Lawrence Yun, NAR’s chief economist, said activity was expected to slow in the winter but he expects it to pick up again as the new April deadline approaches.

“The fact that pending home sales are comfortably above year-ago levels shows the market has gained sufficient momentum on its own,” Yun said in a statement. “We expect another surge in the spring as more home buyers take advantage of affordable housing conditions before the tax credit expires.”

Regionally, the pending home sales plunged 25.7% in the Northeast, but remain up 14.7% from the same period a year ago. In the Midwest, sales dropped 25.7% but remain higher by 9.2% from 2009, while sales in the South dropped 15% and remain up 14.7% from a year ago. Sales in the closely watched Western region of the country declined slightly, by 2.7%, and remain higher by 21.4% from 2008.

By Ken Sweet
FOXBusiness

Bexar County Judges' Influence and Power Extends Far Beyond Courtroom

2009-12-15T08:20:00.002-06:00

Judges play key roles outside of court

Did you know that when you cast votes for criminal and civil district judges, you also have a hand in how Bexar County selects its purchasing agent? Or that, with those same votes, you're lending voice to how the county's juvenile probation and detention systems are run?

If you didn't know that, then last week's fracas involving judges' selection of a new chief adult probation officer probably came as a surprise, too.

Most Bexar County residents won't be directly affected by the judges' administrative work, but the jurists' noncourtroom duties matter if you care about how taxpayer money is spent and how criminal justice and rehabilitation is managed.

The process for picking a new chief probation officer came under scrutiny last week because of concerns the panel violated the Open Meetings Act when it offered the job to Jesús Reyes, interim chief of the Cook County probation office in Illinois.

Judges are expected to meet today to officially finalize their selection of Reyes to head the adult probation office.

According to Melissa Barlow Fischer, general administrative counsel for the criminal district judges, the group includes nine felony criminal judges, 13 misdemeanor judges and three juvenile judges.

And about six years ago, the job description for the county's purchasing agent was spotlighted and changed after concerns were raised about the office's dismal record of contracting with small and minority-owned businesses.

For most matters, though, the judges do this work mostly out of the public consciousness. It is, no doubt, yeoman's work that would put most of us to sleep. But unless someone's figured out how to count money with their eyes closed, it's worth paying attention.

Not unlike a school board, the judge panel that oversees the juvenile probation system sets the department's policy and direction and also hires the chief of juvenile probation. With the adult probation office, judges approve budgets and hire the directors but leave the policy and direction to the department's respective administrators.

The purchasing board has similar oversight and is made up of three judges and two county commissioners.

The juvenile board is composed of the county judge and 25 district judges. Today, the courts — and the board — add one to their ranks with the expected swearing in of Lori Valenzuela to the 437th District Court.

Outside of their courtroom work, participation on the juvenile board easily is the judges' biggest responsibility, made so decades ago by the state Legislature.

With an annual budget of about $41 million, the juvenile probation department in 2008 managed 7,136 young offenders, providing services to children and families who are referred into the system.

Most of the adult probation office's funding comes from the state, plus roughly $231,000 allotted by the county.

The purchasing office, meanwhile, receives nearly $1.2 million from the county's general fund and is responsible for all “procurement” services.

All of it, a far cry from the courtroom.

Veronica Paniagua-- San Antonio Express News

Texas House Speaker Releases Interim Charges Affecting Land and Real Estate

2009-11-21T09:27:00.002-06:00

This week Texas House Speaker Joe Straus released the 81st Legislature's Interim Committee Charges pertaining to Texas House of Representatives Committees. The charges are varied, and few are unexpected. Interim charges represent the "task assignments" delegated by the Speaker to various House committees which are to be completed during the period between Legislative Sessions.

Of particular importance to real estate interests and real estate attorneys in Texas are the Charges made to the House Committee on Land and Resource Management. That Committee is chaired by Rep. Dennis Bonnen.

The folllowing assignments are contained within Speaker Straus' charges:

1. Evaluate the appropriateness of creating pedestrian-only areas on the public
beaches of the state.
2. Examine unresolved issues relating to eminent domain legislation introduced
during the 81st Legislative Session. Monitor any pending litigation.
3. Examine the granting of easements on state-owned lands, including lands
managed by institutions of higher education and the General Land Office.
4. Study the causes of coastal erosion along the Texas coast. Evaluate current and
alternate funding sources. Review federal programs and their relationship to the
state program.
5. Monitor the agencies and programs under the committee's jurisdiction.

Tenants Enjoy Protections When Landlord/Homeowner Loses Property to Foreclosure

2009-11-17T20:46:00.005-06:00

These days, foreclosures are commonplace. Our natinal economy is experiencing the hangover following years of a credit party reminiscient of a fraternity blow-out. A recent magazine article quoted the CEO of mega-homebuilder Toll Brothers spreading the blame:

“What cracked the market was not just our greed but the greed of our buyers.”

Irrespective of the cause, thousands of tenants have received a nasty and unexpected surprise -- news that the home they are occupying has been foreclosed. Even worse is that in most instances the new owner -- often the mortgage lender -- has plans for the property that don't include continuing the lease. Frequently, the tenant has been faithfully paying rent to the landlord, and wasn't even aware that the property was subject to foreclosure. Imagine the financial disaster that can accompany being suddenly and unexpectedly displaced from a comfortable rental home...

Fortunately, Texas law provides some relief for an unwitting tenant of a foreclosed property.

First, the notice period required before a landlord may file an eviction suit is extended from 72 hours to 30 days (provided the tenant was in compliance with the lease at or near the time of foreclosure). See Texas Proeprty Code Section 24.005.

Second, if the previous owner's interest in the premises is terminated by sale, assignment, death, appointment of a receiver, bankruptcy, or otherwise, the new owner (other than the foreclosing bank, itself) is liable for the return of security deposits. See Texas Property Code Section Sec. 92.105.

I have heard of instances where new owners of properties acquired through foreclosure or trustee's sale have actually offered to pay a pre-existing tenant to vacate the property promptly and peaceably. Such a payment can make sense for both the new and reluctant owner/landlord and the innocent tenant. The new owner obtains certainty and finality concerning possession of the property -- all without incurring attorneys' fees associated with an eviction proceeding. Meanwhile, the tenant receives a quick infusion of cash to help offset moving and related expenses.

If you are either the new owner of a tenant-occupied property, or a tenant in a rental property whose ownership has changed through foreclosure, you should consider consulting an experienced real estate attorney who can explain your rights and responsibilities.

In Texas, persons repairing vehicles and equipment may place workers' liens and even repossess

2009-11-16T08:35:00.006-06:00

As a San Antonio lawyer with active real estate and construction law practices, liens are a daily part of my business. When representing landowners or buyers/sellers of real estate, ensuring clear title -- free of liens and encumberances -- is of the utmost concern. Likewise, my general contractor and sub-contractor clients regularly trust me to place or remove mechanics' liens to secure payment for work performed or materials supplied on contruction projects.

Every so often, hoewever, I get a call from an equipment repair facility, automotive mechanic or other service provider inquiring about their lien rights when customers refuse to pay for their services.

In Texas, liens are available to a variety of persons rendering goods and services, including those who perform repairs on vehicles, motorboats, vessels and/or outboard motors. Persons performing such repairs are referred to as "workers," and their lien rights are set-forth in Section 70.001 of the Texas Property Code.

That section not only entitles the repair person to place a lien on the article that was repaired, but also entitles such "worker" to retain POSSESSION of the article until payment is received. Here's the text of the statutue:

Sec. 70.001. WORKER'S LIEN. (a) A worker in this state who by labor repairs an article, including a vehicle, motorboat, vessel, or outboard motor, may retain possession of the article until:
(1) the amount due under the contract for the repairs is paid; or
(2) if no amount is specified by contract, the reasonable and usual compensation is paid.

Many times, people pay for repairs through check or credit card transactions. In these instances, the article that was repaired is released to the owner prior to the repair person actually receiving the funds associated with a purported payment. Nefarious customers might then stop payment, close their account, or simply have their check returned for NSF. In such instances, the statute, again, seeks to protect the rights of the repair person, and even authorizes repossession in certain circumstances:

(b) If a worker relinquishes possession of a motor vehicle, motorboat, vessel, or outboard motor in return for a check, money order, or a credit card transaction on which payment is stopped, has been dishonored because of insufficient funds, no funds or because the drawer or maker of the order or the credit card holder has no account or the account upon which it was drawn or the credit card account has been closed, the lien provided by this section continues to exist and the worker is entitled to possession of the vehicle, motorboat, vessel, or outboard motor until the amount due is paid, unless the vehicle, motorboat, vessel, or outboard motor is possessed by a person who became a bona fide purchaser of the vehicle after a stop payment order was made. A person entitled to possession of property under this subsection is entitled to take possession thereof in accordance with the provisions of Section 9.609, Business & Commerce Code.

But a repair person should be very careful before asserting any right of repossession. This is because repossession is only available under a limited set of circumstanes:

(c) A worker may take possession of an article under Subsection (b) only if the person obligated under the repair contract has signed a notice stating that the article may be subject to repossession under this section. A notice under this subsection must be:
(1) separate from the written repair contract; or
(2) printed on the written repair contract, credit agreement, or other document in type that is boldfaced, capitalized, underlined, or otherwise set out from surrounding written material so as to be conspicuous with a separate signature line.

A repair person who properly asserts a right to repossession may require the owner of the repossessed article to pay for repossession costs, including towing:

(d) A worker who takes possession of an article under Subsection (b) may require a person obligated under the repair contract to pay the costs of repossession as a condition of reclaiming the article only to the extent of the reasonable fair market value of the services required to take possession of the article. For the purpose of this subsection, charges represent the fair market value of the services required to take possession of an article if the charges represent the actual cost incurred by the worker in taking possession of the article.

Again, repossession is available only in limited circumstances. Under certain conditions -- such as when a worker transfers to the repo company a returned check -- the worker may find himself in trouble for attempting repossession.

For that reason, all repair facilities and persons should consult with an experienced attorney PRIOR TO attempting a repossession upon a workers' lien. In addition, the prudent garage or mechanic should have a lawyer who is familiar with liens review their service contract or agreement to ensure that the repair document properly provides notice and authorization for repossession of the article to be repaired.

New Constitutional Amendment Provides for Uniform Assessment of Property Texas Throughout Texas

2009-11-13T05:17:00.004-06:00

Last Tuesday, November 3, 2009, Texas voters passed 11 constituional amendments, many of which serve to preserve private property rights, and to equalize the manner in which ad valorem taxes are assessed against real estate in Texas.

Of particular importance to Texans paying property taxes was proposition 3, whose purposes was to remove the constitutional requirement that administrative and judicial enforcement of uniform standards and procedures for property appraisal originate in the county where the tax is imposed. Instead, the amendment sought to remove the requirement of local procedures for tax appraisals, and to give the Texas Legislature full discretion to prescribe the manner of the enforcement of uniform appraisal standards and procedures throughout the State.

The exact language of the proposed amendment was somewhat benign:

Amendment No. 3 (H.J.R. 36, Article 3) The constitutional amendment providing for uniform standards and procedures for the appraisal of property for ad valorem tax purposes.

Prior to adoption of this Amendment,Section 23(b), Article VIII, Texas Constitution, required that administrative and judicial enforcement of uniform standards and procedures for the appraisal of property for property tax purposes, as prescribed by general law, originate in the county where the tax is imposed. This provision has been interpreted to mean that the state has little meaningful supervisory or administrative power over the standards and methods that local appraisal districts use to value property.

While the Texas property tax system has always been administered on the local level, it is undeniable that the state retains an interest in property tax appraisal professionalism and competence. The state also has an interest in the consistent determination of property tax appraised values from one locality to the next, through the application of uniform appraisal practices, because the state allocates funding to public schools based on the per-student aggregate taxable property value in each school district.

As do most things legal, property tax appraisal practices and procedures vary widely across Texas. A property located in one county is sometimes appraised much differently than a similar property located elsewhere in the state -- even in an adjoining County.

Prior to adoption of proposition 3, there was no legal basis for direct oversight of appraisal districts by the state. Thus, inequities in assessing and collecting taxes were local functions, and the state was powerless to directly require an appraisal district to follow state law or apply a standard appraisal method. This resulted in a hodge-podge of practices and non-standard procedures, which failed to ensure appropriate and accurate appraisals that determine the value of property for taxation purposes.

As a Texas attorney actively engaged in a real estate practice, I fervently believe that some degree of statewide uniformity and equity of appraisal processes is necessary. In my opinion, real property located in one Texas county should be appraised in the same manner and according to the same rules as similar property located in another Texas county. This is not to say that a "one size fits all" approach is best, but certainly amending the Texas Constitution to allow direct state enforcement authority and oversight of local appraisals was a positive step. With the recent passage of proposition 3, the state is allowed to oversee the appraisal system directly and take the necessary action to address inequities and inconsistencies in property appraisal.

Real Estate Commission Agreements MUST be in Writing to be Enforceable

2009-11-11T07:31:00.004-06:00

Real Estate commissions paid to brokers and realtors are often the subject of legal disputes in Texas. Participants in real estate sales and purchases often squabble over who, if anybody, is entitled to a commission arising from that sale.

Disagreements frequently arise between brokers over who was the "procuring cause" of a certain sale. Likewise, sellers sometimes dispute that their listing agent or salesperson has adequately represented his or her interests. Real estate professionals, on the other hand, must be wary of clients who benefit from their services, but do not wish to compensate them.

No broker or agent should be required to freely provide services, advice or expertise. But -- at the same time -- brokers must disclose to their customers the method and amount of compensation they intend to realize from a given transaction.

This dilemna has a simple solution -- PUT IT IN WRITING!

The Texas Real Estate Commission, and local Boards of Realtors, frequently publish materials encouraging that commission and representation agreements be in writing so as to avoid disputes over commissions.

Texas law does NOT require that agreements for the engagement of Realtors as either "Listing Agents" (Seller's Representatives)or "Buyer's Representatives" be in writing. However, a broker/agent MAY NOT file a suit to enforce any commission claim, unless theagreement to pay a commission is in writing and signed by the customer.

Section 1101.806(c) of the Texas Occupations Code (the Texas Real Estate License Act) expressly provides as follows:

A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.

A prudent broker, seller and/or buyer will not enter into a real estate transaction without a written agreement concerning payment of commissions. This arrangement protects all participants in real estate purchases and sales.

Further, Buyers or Sellers from whom a broker/agent/salesperson seeks a commission, based upon anything other than a written agreement might be spared the expense of paying that commission.

Shedding the Homestead Designation and Family Transfers

2009-11-11T07:11:00.002-06:00

Texas Homesteads -- Bars to Keep Strangers Out, or to Keep Owners In?

Many times, family members desire to sell properties to one-another. The reasons for these transfers are innumerable -- advance pre-death gifts, planning for the aging process, and maintaining the integrity of family properties are just a few. A common scenario is when a mother desires to sell her home to her son, but to remain living in the home until her death. This transaction -- simplistic as it seems -- could encounter difficulties and even be rejected by a title company because of the tremendous power of Texas homestead laws.

The homestead laws are contained in the Texas Constitution and in Chapter 41 of the Texas Property Code. Our courts have liberally construed the homestead protections, indulging every opportunity to exempt real property from forced sale by general creditors.

In Texas, exercising homestead rights in property does not require any formalized legal process, or the filing of a specific document. The general criteria for creating a homestead are (i) overt acts of usage, and (ii) an intent to claim the land as a permanent residence.

Every Texan family and every single adult person is entitled to a homestead exempt from seizure for claims of creditors Homestead exemptions in Texas were enacted to protect Texans' homes from creditors. However, once a homestead is designated, removing that designation will often require physical abandonment of the property. This can present problems under the scenario described above, since mom (the seller) will be required to abandon the homestead exemption before she can sell the property to her son (the buyer). This very likely could mean that mom won't be permitted to reside in the home for some period of time after the transfer.

Courts have been fairly consistent on this issue: Where a homestead claimant moves from property that has been previously impressed with homestead character, the question of whether such property continues as a homestead is dependent primarily upon the intention of the claimant. West v. Austin Nat’l Bank, 427 S.W.2d 906, 911-12 (Tex. Civ. App.–San Antonio 1968, writ ref’d n.r.e.) (citing McMillan v. Warner, 38 Tex. 410, 411 (1873)). “One does not necessarily abandon a homestead merely by changing residence.” Chesson, 149 S.W.3d at 808 (citing Rancho Oil Co. v. Powell, 142 Tex. 63, [69,] 175 S.W.2d 960, 963 (1943)). “To be an abandonment that would subject such property to seizure and sale, there must be a voluntary leaving or quitting of the residence with a then present intent to occupy it no more as a home . . . .” King v. Harter, 70 Tex. 579, 581, 8 S.W. 308, 309 (1888). “[O]ur courts have held that ‘it must be undeniably clear and beyond almost the shadow, at least [of] all reasonable ground of dispute, that there has been a total abandonment with an intention not to return and claim the exemption.’” Burkhardt v. Lieberman, 138 Tex. 409, 416, 159 S.W.2d 847, 852 (1942) (quoting Gouhenant v. Cockrell, 20 Tex. 96, 98 (1857))."

As with most legal problems, there are solutions to problems presented by the homestead exemption. Family transfers can be accomplished without changing mom's place of residence. One should seek experienced legal counsel when presnted with problems selling real estate that arise from the homestead exemption.

Understanding the "Due on Sale" Clause in Texas Deeds of Trust

2009-08-19T23:06:00.006-05:00

Many times in today's economy, homeowners will desire to sell their properties to buyers who are unable to qualify for financing through a mortgage loan. Among the factors that contribute to a prospective Buyer's inability to obtain the loan are creditworthiness, tight capital markets, and low appraisal on the property to be bought/sold. Irrespective of the reason, the absence of a mortgage lender presents unique challenges to the Seller and the Buyer. The most common solution to these challenges is some form of Owner Financing.

However, many of the historically-common mechanisms for Owner Financing have come under strict scrutiny by the Texas Legislature and Courts. The most significant of the Legislature's "reforms" are contained in Chapter 5 Texas Property Code which makes lease purchase or rent-to-own agreements very tough. Investors and other sellers intent on making the sale to Buyers who can't get financing tend to favor "wrap-around mortgages." However, utilizing this mechanism may present unreasonable risks to the new Buyer and sometimes even the Seller (who was the original Buyer/borrower under a still-existing mortgage note.

The biggest problem with utilizing a wrap-around mortgage -- a mortgage from the Seller to the new Buyer under which the Seller's underlying mortgage (the first one, held by the original lender) is not being paid off at closing -- is the "due on sale clause" contained in the Deed of Trust associated with the underlying/first mortgage.

The following is a fairly typical DUE ON SALE CLAUSE found in a Texas Deed of Trust:

"If Grantor [Borrower] transfers any part of the Property without Lender’s prior written consent, Lender may declare the debt secured by this deed of trust immediately payable and invoke any remedies provided in this deed of trust for default. If the Property is residential real property containing fewer than five dwelling units or a residential manufactured home occupied by Grantor [Borrower], exceptions to this provision are limited to (a) a subordinate lien or encumbrance that does not transfer rights of occupancy of the Property; (b) creation of a purchase-money security interest for household appliances; (c) transfer by devise, descent, or operation of law on the death of a co-Grantor; (d) grant of a leasehold interest of three years or less without an option to purchase; (e) transfer to a spouse or children of Grantor or between co-Grantors; (f) transfer to a relative of Grantor on Grantor’s death; and (g) transfer to an inter vivos trust in which Grantor is and remains a beneficiary and occupant of the Property."

In plain English, a "Due on Sale" clause like the one above means that in the event that ownership of the property is transferred from the original Buyer (now acting as Seller) the original lender may accelerate its note or "call the note" due in full.

Under a "wrap-around mortgage" the first/underlying mortgage is still in the Seller’s name and monthly payments must still be made to the original lender as if the sale to the new Buyer never occured. If there is a default in those payments or if the first lender accelerates the note, then that lender could foreclose on the property, causing a dominoe effect under which the new Seller’s wraparound mortgage is invalidated or simply pre-empted and the new Buyer loses any and all ownership interest in the property as well as whatever monies he or she has paid against the wrap-around mortgage.

As a Texas lawyer with an active real estate litigation practice, I've seen many wrap-around mortgage situations go sideways. This occurs most frequently in 2 situations:

1. When the new Buyer defaults in payments, causing the Seller to default on his/her mortgage. This frequently results in a foreclosure that ends-up on the new Seller's credit. Sometimes the Seller is even stuck with a deficiency judgment.

2. When the new Buyer timely pays all monthly payments but the Seller (or more likely a middleman "investor") fails to remit those payments to the original mortgage lender. This can result in a foreclosure without notice to the new Buyer (even though he is timely paying everything he is supposed to pay) because the original mortgage lender isn't even aware of that person's existence, much less their claim to an ownership interest in the property.

Wrap-around mortgages, due-on-sale clauses, and other owner-financing mechanisms are complex and highly regulated by the Texas Property Code and the Courts. Buyers and Sellers considering entering into an arrangement that impicates "executory contracts" should ALWAYS obtain the review and advice of separate real estate lawyers. Your home and your credit are far too valuable to leave to chance and/or to negotiate "under the radar."

Guilty Plea Entered in Texas Mortgage Fraud Scheme

2009-08-19T07:58:00.002-05:00

HOUSTON — Grant William Gondrezick, 45, has pleaded guilty to conspiring to commit wire fraud, United States Attorney Tim Johnson announced today. Gondrezick pleaded guilty before U.S. District Judge Melinda Harmon. Sentencing is set for Dec. 4, 2009, when he faces up to five years in prison, a fine of up to $250,000 and up to $1.9 million in restitution.

According to the factual basis in Gondrezick’s plea agreement, Gondrezick engaged in a mortgage fraud scheme between November 2004 and May 2005 that involved the sale of 24 homes, most of which were in Montgomery County, Texas. Gondrezick recruited straw buyers who entered sales contracts for homes which stated that substantial amounts (typically between $80,000 and $100,000) were going to be taken out of the seller’s proceeds at closing and sent to one of Gondrezick’s contracting companies for home improvements. These amounts were added to the asking price of the homes though neither the seller nor the nominee buyer asked for the improvements or hired Gondrezick’s company. Gondrezick submitted invoices to the title companies in these amounts to justify the third-party disbursements, claiming that custom renovations or home theater work had been performed. In fact, no such work was performed. Because the nominee buyers never planned to live in the homes, the buyer never complained about the lack of renovations which had been paid out of the closing. Gondrezick received approximately $1.9 million in these disbursements out of the loan proceeds which totaled approximately $10 million.

Gondrezick further admitted that the straw buyers were paid to participate in this scheme and that the loan applications contained false information relating to the buyers income, employment, assets and intent to occupy the homes.

Co-defendants Tiffany Brooks, who worked as a loan processor, Dirk Minnifield, a realtor, and Marc Jason Williams, who worked with Brooks as a loan processor, are also charged for their alleged involvement in this scheme and are scheduled for a Feb. 1, 2010, trial.

Calculating the Landlord's Damages When Premises Are Re-Let after Tenant Breach

2009-08-08T13:40:00.006-05:00

When a Tenant breaches a lease agreement by terminating or abandoning the Lease, or when a Landlord is required to terminate based upon some act or omission of the Tenant, the Landlord faces a two-sided problem: First, he or she has vacant rental property and has likely suffered damages as the result of lost rents in the past. Second, the landlord will likely suffer loss of rental proceeds in the future, all the while incurring costs associated with owning and managing the now-vacant property.

As I have previously discussed on this blog, a Landlord has a statutory obligation to mitigate the damages he suffers as the result of a Tenant's actions. See TEX. PROP. CODE ANN. § 91.006. The duty to mitigate losses or damages is usually interpreted as a requirement that the Landlord attempts to re-let the premises vacated by the original Tenant.

Many times after a breach, the condition of the premises or the overall rental climate (supply and demand) can be markedly different than it was at the time the original Tenant first occupied the property. This can result in substantial difficulty in finding a replacement Tenant. Nevertheless, a Landlord is required to use reasonable efforts to find a replacement Tenant, even if the rental proceeds from that new Tenant are less than those that would have been received had the original Tenant fulfilled her Lease obligations.

In those instances where a deficiency exists between the rent received from a replacement Tenant and the rent agreed-to by the original Tenant, a Landlord is entitled to recovery of his damages. Other elements of the Landlord's damages are the costs of re-letting the property (advertising, repairs, make-ready, Realtor commissions, modifications required by the replacement Tenant, etc), and any rents not received between the time that the original Tenant vacates and the replacement Tenant takes possession.

So...how does a Landlord calculate the measure of damages resulting from a Tenant's breach?

Consistent with its statutorily-imposed duty to mitigate, a Landlord seeking damages for anticipatory breach of a Lease Agreement must prove the present value of the future rentals under the unexpired term of the lease, REDUCED BY either the reasonable value of re-renting the leased premises or the rent paid by any new tenant. See Marshall v. Telecomm. Specialists, Inc., 806 S.W.2d 904, 907 (Tex. App.—Houston [1st Dist.] 1991, no writ).

That is, if a Landlord is able to re-let the premises at the same or more rent than the original Tenant agreed to pay, then the original Tenant is only required to pay the costs of re-letting. On the other hand, when a Landlord rents the premises for less rent, the Tenant is required to pay the re-letting costs PLUS the Landlord's shortfall over the term of the original Lease Agreement. see also Crabtree v. Southmark Commercial Mgmt., 704 S.W.2d 478, 480 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (limiting damages sought by landlord who treated tenant’s conduct as anticipatory breach to recovery of present value of rentals that accrue, reduced by reasonable cash-market value of unexpired term of lease); Speedee Mart, Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex. App.—Amarillo 1983, no writ)(holding that landlord who treated tenant’s conduct as anticipatory breach could recover contractual rental reduced by amount received from new tenant).

Many Lease Agreements in Texas (and the standard Commercial Lease Form in New York) purport to make the Tenant responsible for all rental proceeds that he or she did not pay, irrespective of whether the Landlord re-lets the property in the future. These provisions are generally not enforceable in Texas, where the Landlord's efforst to mitigate his losses are often the subject of intense scrutiny in lawsuits advanced for recovery of lost rents.

Understanding CAM Charges in the Commercial Lease Context

2009-08-08T07:06:00.005-05:00

Common Area Maintenance Charges or "CAM" have become a fixture on the landscape of Commercial Lease Agreements pertaining to strip centers, enclosed malls and other multi-unit/multi-tenant real estate developments. CAM charges are generally defined as the amount of additional rent charged to a tenant (in addition to the base rent), to maintain the common areas of the property shared by all tenants and from which all tenants benefit. However, there exists significant variation in the types of expenses Landlords seek to include in CAM charges, with many such expenses less obvious and less beneficial to any particular Tenant than one might expect.

CAM charges are generally prescribed by specific provisions in Commercial Lease Agreements, and the Lease terms will define the items to be included in calculating the Tenant's CAM obligations. Thus, an agreement to pay CAM charges is contractual in nature, and one of the essential elements of a Lease Agreement.

As stated above, CAM fees vary considerably and cover a wide range of expenses landlords would otherwise pay. They typically include taxes, insurance, property maintenance, repairs, cleaning costs, utility charges and landcaping associated with the area surrounding the leased premises. However, they might also include more latent items such as security systems and patrols, depreciation on capital expense items, salaries of administrative staff who run the development, non-tenant signage, and even the Landlord's corporate overhead expenses that are un-related to the property.

CAM charges can be assessed and paid monthly, quarterly, annually, or even charged from time-to-time as major expenses are incurred by the landlord.

It is particularly important that both the Landlord and Commercial Tenant have a thorough understanding of what charges are (and are not) included in CAM Charges PRIOR TO entering a Commercial Lease Agreement.

Court challenges to CAM fees are common, and often arise from nebulous definitions of CAM charges in a Lease Agreement. In a highly publcized case currently pending in federal court in Austin, Dillard's department store and the owner of the Highland Mall are feuding over whether Dillard's was improperly charged for, among other CAM items, "the cost of maintenance and housekeeping for the food court of the mall." This case presents an interesting example of the different perspectives landlords and Tenants have concerning proper CAM expenses.

The Texas Property Code recognizes the potential for wide confusion over what charges may be assessed against a Commercial Tenant. Thus, Section 93.012 expressly limits charges to tenants (other than a charge for rent or physical damage) to those whose amounts or method of computation are stated in the lease.

Landlords and Tenants are encouraged to engage in frank discussion and transparency when negotiating Commercial Lease Agreements that provide for CAM charges. Further, all such Leases should include provsions allowing independent audit of the CAM charges.

CAM issues are complex and are fertile ground for dispute and even litigation. Accordingly, a prudent Landlord and Tenant should enagage the assistance of a real estate attorney who is experienced in interpreting Commercial Lease Agreements and the CAM charges to be assessed under those Leases.

Landlord's Remedies When Tenants Abandon Leased Premises

2009-08-08T06:13:00.005-05:00

As a real estate lawyer in San Antonio, I am frequently asked about a Landlord's options upon learning that a Tenant has moved-out without notice, or who simply abandoned the leased premises before a lease ends. The Texas Supreme Court has recognized four distict causes of action that a landlord may assert against a tenant who breaches a lease by abandoning the premises:

(1) maintain the lease and sue for rent as it becomes due;
(2) treat the breach as an anticipatory repudiation, repossess, and sue for the present value of future rentals reduced by the reasonable cash market value of the property for the remainder of the lease term;
(3)treat the breach as anticipatory, repossess, re-lease the property to a new tenant, and sue the original tenant for the difference between the contractual rent and the amount received from the new tenant; or
(4) declare the lease forfeited (if the lease so provides)and relieve the tenant of liability for future rent.

See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997).

However, it is important to remember that a landlord has a duty to mitigate its losses/damages when a tenant abandons the leased premises and stops paying rent. Id., at 295–300. This principle recognizes that a landlord who claims anticipatory breach has a duty to mitigate because the landlord’s claim is contractual in nature. Id. at 300.

Further, the Texas Legislature has codified the landlord’s duty to mitigate as section 91.006 of the Property Code. See TEX.PROP.CODE ANN.§ 91.006 (Vernon 2007). That same section prohibits, and makes "void," lease terms that attempt to exempt a landlord from a liability or duty to mitigate its losses. Id.

San Antonio retail market vacancy on the rise

2009-08-03T19:09:00.000-05:00

After being hit earlier this year with the closures of national retailers such as Circuit City, Mervyn’s and Linens N’ Things, the faltering economy continued to impact the local retail market over the past three months.

Sportsman’s Warehouse vacated its 47,000-sf location at The Legacy after having closed the location at Westover Marketplace last year.

According to the survey of nearly 44.5 million sf of area retail space conducted by NAI REOC Partners, the San Antonio retail vacancy rate climbed to 14.5 percent at the close of second quarter 2009, which is a marked increase from the 11.4 percent vacancy rate recorded a year ago.

The market grew by more than 3.5 million sf last year, but less than 849,000 sf of new retail space has been delivered to the area in the first half of the year with less than 250,000 sf expected to come online by year’s end.

In 2Q 2009, nearly 677,000 sf of new retail space came online led by the addition of Woodlake Crossing (305,231 sf) featuring Target, Ross Dress for Less, PetCo, Best Buy and several others.

Aside from the gains produced in the newly completed centers, activity within existing centers overall remains relatively slow, but leases are still being signed. Renewals and extensions led second quarter activity including Big Lots (29,875 sf) at Bandera Festival.

The impact of higher-priced new projects floated up average rental rates and now that the market is feeling the impact of a sluggish economy, quoted rental rates have begun to reflect the downturn. At the close of 2Q 2009, the citywide average quoted triple net rental rate for retail space in San Antonio inched up to $18.33 per sf annually.

Compared to a year ago, the average rent is up $0.86, a 4.9 percent increase, but the $0.10 gain over last quarter registers a growth rate of less than 1 percent.

From the TAMREC

San Antonio Lease Dispute results in $2.7M Verrdict against hotel

2009-07-31T06:04:00.003-05:00

A Bexar County jury decided to award $2.7 million this week to a local restaurant whose owners said they were fraudulently evicted last year from a North Side Drury hotel.

In the lengthy verdict, which is still pending approval from state District Judge Janet Littlejohn, jurors said Drury Southwest Inc. failed to comply with its lease with Louie Ledeaux #1 Inc.

The hotel chain also committed fraud, made a negligent misrepresentation and relied on a “false, misleading or deceptive act or practice” in dealing with the restaurant owners, the jury found Tuesday.

Louie's Hacienda Mexican Restaurant — an offshoot of a Cajun restaurant at The Forum shopping center — operated on the property of a Drury hotel near Loop 410 and Jones Maltsberger Road from December 2007 until March 2008.

Drury was the first to sue, claiming in court documents that the restaurant “closed the doors intending to not reopen.” The hotel asked the court to bar the restaurant from taking anything, other than food, from the premises because Drury was entitled under the lease to keep all improvements.

The restaurant had invested about $400,000 in equipment at the site, it said.

Louie Ledeaux #1 Inc. later filed a countersuit, claiming Drury had failed to mention during the signing of the lease that the Jones Maltsberger exit along Loop 410 was slated for closure. The hotel also said it would build a patio in an area that it did not own, and that the company would be able to add a sign under the Drury marquee, according to the counterclaim.

While the restaurant operators did meet with hotel representatives to discuss an initiative to make the restaurant more profitable, they were never delinquent in rent and never intended to close, they said in court documents.

The jury decided Drury and its lawyers deserved about $112,533 from the restaurant.

But the verdict, if upheld, will make the hotel chain responsible for paying almost $1.3 million for committing fraud and nearly $1.1 million for engaging in a false, misleading or deceptive act or practice. Jurors also awarded the restaurant $286,088 because Drury didn't comply with the lease and another $158,000 in attorney's fees.

Adapted from the Express News

Crossing Fence Lines to Retrieve Wounded Game...or why to avoid the gut shot

2009-07-24T07:30:00.005-05:00

It's always great when a blog post results in a call to my office. A few days ago I wrote a post about the importance of having a well-drafted hunting lease. Yesterday, a reader called to inquire about my post. Turns out, he wanted to know whther it is legal in Texas to cross a fenceline/property line in pursuit of an animal you (as a hunter) have wounded on your side of the fence.

That is a fairly common question -- especially in dove season, where fence lines are often the best hunting spots, and wounded birds frequently go down on the neighbor's property.

The answer, too is fairly clear, and may be disappointing:

"No person may pursue a wounded wildlife resource across a property line without the consent of landowner of the property where the wildlife resource has fled. Under the trespass provisions of the Penal Code, a person on a property without the permission of the landowner is subject to arrest."

This information comes directly out of the Texas Parks & Wildlife's Outdoor Annual, Hunting & Fishing Regulations.

So what does this mean? In my mind, it translates to 2 things:
1) never take a shot an an animal unless you know that you can take it down (be realistic about your aim, distances, and firepower); and
2) if you find that tropy buck on the neighbor's property, call the neighbor and ask permission to retrieve it.

If the neighbor cannot be reached, call a Game Warden. Since game waste is also a crime, the Warden is likely to assist you, or at least monitor the situation. remember, RESPECT is an essential element of hunting and of private property rights and the law.

Time to Sign a Hunting Lease? Better Call a Lawyer!

2009-07-22T21:38:00.013-05:00

It's getting to be that time of year again! Time to find the perfect hunting lease, or find the perfect hunters for your land. While many of us are fortunate enough to have regular places to hunt year-after-year, an upcoming deer season often means time to replace the old lease (or hunters/lessees) with someplace (or someone) new and better.

I am amazed at the number of hunting lease ads in newpaper classifieds, on Craigslist, and other impersonal media. My amazement is this: while the economy of advertising to a broad base of prospective hunters or being exposed to a variety of available properties makes sense, the chances of getting a bad apple are increased exponentially by mass marketing. My experience dictates that many landowners, and even more hunters, are not what they appear to be on the internet.

Ever since I was a pup in law school many (many, many perhaps) hunting seasons ago, I have been peppered with inquiries from scorned landowners and hunters who have suffered from bad experiences. It still surprises me how many hunting "leases" are "handshake deals" with little or no documentation. Many times, there is little or no discussion of the important details of a lease arrangement.

As a long-time hunter, I understand the value of a man's word, and like to think of Texas hunters as a fraternity. Anyone who's worn camo to Sunday breakfast at a small town cafe appreciates the comraderie we hunters share. Unfortunately, as a Texas real estate lawyer, I know that lessor/lessee relationshsips can go South real quick when valuable land and animals are involved! It happens far too often.

I have personally represented very successful businessmen who run giant enterprises like well-oiled machines. These talented entrepreneurs know the ins and outs of boardrooms and courtrooms in their professional lives. However, when they get a case of ranch envy or "early-onset Buck Fever," they've written checks for tens of thousands of dollars for hunting leases without so much as a receipt -- much less a written lease agreement! This is a mistake 12 times out of 10.

Texas landowners are particular about their property, and they should be. Game animals are a valuable commodity, and hunting operations are sometimes the largest source of revenue for rural landowners. By the same token, hunters pay millions of dollars every year to chase trophy animals, and they deserve to get their money's worth out of any lease. Often times, hunters will invest hundreds of hours and thousands of dollars into a property that they don't even own. Landowners let starnagers "take over" their properties for 1/2 the year.

All of this amounts to one, all-too-often painful, conclusion: Hunting Leases are business transactions!

In case I haven't been clear enough, let me be so now by offering free advice: DO NOT ENTER INTO A HUNTING LEASE ARRANGEMENT WITHOUT A WRITTEN LEASE. Equally important is having an experienced real estate lawyer (and preferably one who hunts) draft and/or review your hunting lease.

The possibilities for dispute are innumerable: number of permitted hunters, whether non-hunting guests are allowed, the types of vehicles allowed (some landowners abhor 4 wheelers), the class and age of animals that may be harvested, use of alcohol on the property, presence and treatment of livestock, location of deer camp, number and location of feeders/stands/blinds, fishing in stock ponds, type of weapons that may be used, killing of non-game animals and varmits, night hunting and spotlighting, Border patrol and Game Warden issues, amount and type of feed to be supplied, damage to trees and crops, whether dogs are allowed on the property, gates and locks, term of lease, use of lodge/cabins vs. camping, etc., etc., etc.

I've heard all of these disputes and more... and I can promise that they take the excitement out of hunting quicker than a missed shot or wasp nest in your blind! And I didn't even mention potential liability for injuries on the property.

Every prudent landowner/lessor will want to ensure that his or her hunters respect the land and animals, abide all game laws, and behave responsibly upon the leased property. Every hunter/lessee will want to ensure that he and his guests get the best opportunity for a fun and successful hunting season that yields plenty of animals and even more memories. The closest thing that either side can get to a guarantee that this will happen is through a written hunting lease drafted by an experienced real estate lawyer.

Don't leave your investment to chance. Strangers who you know have guns don't make for good enemies...

BTW, that is an 11 point buck I took in Maverick County during the 2007 season. Believe it or not, the lessor let ME draft the hunting lease.

Commercial Leases -- Review Before and Long After you Sign!

2009-07-22T20:55:00.003-05:00

As an attorney with an active real estate law practice, I regularly review commercial leases before my clients sign them. Over the years I have represented restaurants, manufacturers, nail salons, gyms, hunters, physicians, snack bars, and other various other business tenants negotiate the terms of their Commercial Leases, and agree to the most favorable terms possible. On the flip side, I have represented several owners of commercial properties in the drafting and negotiation of their commercial leases with every imaginable tenant -- from flower shop owners to barbacoa stands (only in San Antonio!) to nationwide anchor tenants.

Recently, however, I was asked to do something new. The prospectivce client called and inquired as to whether i would perform a "mid-lease review." Though I didn't admit it at the time, I had never been asked to do so, and wasn't exactly sure of the purpose for such a review. After inquiring further, I learned that my prospective client -- a tenant in a large strip center in north central San Antonio -- felt something was amiss with their commercial lease, and the payments they were being asked to make for Common Area Maintenance (CAM) charges and other items of "additional rent." The tenant confirmed that he wasn't even sure that anything was wrong, but said he had a "gut feeling" something "just wasn't right."

After being provided with a copy of the Commercial Lease and all of the Invoices/Monthly Statements received from the landlord during the current lease term (3 years into a 7 year lease), I began a detailed review of the tenant's rent and associated obligations. After completing this review, it became clear that my client's suspicions were dead on -- his business had been overcharged by almost $17,000.00, with no sign of correction coming in the future! If the overcharges went unabated, his business could expect to pay up to $41,000.00 more in rent than he was obligated to pay under the terms of the written Commercial Lease.

In this particular case there were 2 issues:

(1) unpaid "build out allowances" granted to the tenant; and
(2) overcharges for CAM expenses.

After bringing the discrepancy to the landlord and management company's attention, the overcharges were credited back to our client. The result was that his business got to skip almost 2 full rent payments -- talk about a shot in the arm!

This experience got me to thinking about all of the complex lease negotiations we've undertaken in the last several years. What if just one-half of the Commercial Leases we negotiated were being misapplied? Think of all of the overcharges, and perhaps even undercharges, that might be taking place on a monthly basis... Think of the thousands of dollars in adjustments that might be necessary...

Many times, the obligations and payments will match-up and there is nothing to worry about. In other instances, there might be discrepancies about repair bills, rent concessions, security deposit burn-downs, taxes and untimely rent escalations. These issues may arise several years after the Commercial Lease has been signed, and when both the landlord and tenant are "asleep at the wheel."

The point of this posting is to encourage landlords and tenants who have signed Commercial Lease Agreements to have those leases reviewed periodically to ensure compliance and smooth sailing. Just because the Lease is signed and the tenant is paying rent doesn't necessarily mean all is well. The best bet, of course, is to have a qualified real estate lawyer review the lease. The amount you pay in attorneys' fees will likely be well worth the peace of mind or potential discrepancy that the lease review yields.

Texas Leads the Nation in Private Ranch Holdings

2009-07-22T20:44:00.004-05:00

Texas is home to over 142 million acres of private farms, ranches and forestlands, thus leading the nation in land area devoted to privately-owned working lands. These lands account for 84% of the state’s entire land area and provide substantial economic, environmental, and recreational resources to the benefit of the state’s entire population.

By 2007, smaller operations – those less than 100 acres in size – accounted for over 50% the state’s total farming & ranching operations, while occupying only 3% of the land area. This class of smaller operations increased by 22% since 1997, and was the only ownership size class showing an overall net increase in land area across the state.

The amount of land in mid-sized farms & ranches (500 to 2,000 acres) has continued to decline at the rate of about 250,000 acres per year.

Large ownerships – those greater than 2000 acres in size – account for about 4% of all farms & ranches, but they occupy about 62% of the state’s total farm & ranchland. While larger operations have slightly increased in total number since 1997they have decreased in land area by 461,000 acres.

The loss or gain in area represented by large operations varied according to ecological region. For example, since 1997 over 2.8 million acres of larger farms & ranches in the Trans Pecos, Edwards Plateau and South Texas were fragmented into mid-sized and smaller ownerships. In other regions – the High Plains, Rolling Plains, Coastal Sand Plains, Oak Woods & Prairies, and Blackland Prairies – about 2.5 million acres of mid-sized properties were consolidated into larger operations.

Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings

2009-07-15T08:25:00.000-05:00

WASHINGTON — Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum.

Judge Sonia Sotomayor will doubtless be questioned about Kelo at her confirmation hearings next month. But her answers will be complicated by her participation in a 2006 decision applying and extending Kelo.

Bart Didden, the property owner on the losing side of that decision, Didden v. Village of Port Chester, said in an interview that he had been contacted by aides to Republicans on the Senate Judiciary Committee who seemed eager to explore Judge Sotomayor’s views on property rights.

The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal.

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden’s case was a rare misfire that provided no larger insights into Judge Sotomayor’s thinking.

“It’s a disappointment and it’s wrong and it’s ill thought out,” Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. “But it’s not one of six. It’s one of two.” (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.

“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”

Mr. Didden refused. The next day the village condemned his property.

Mr. Wasser did not respond to a recent message seeking comment left with an assistant. In a sworn statement in 2004, he denied being “part of an ‘extortion’ plot” and said the accusation was “beyond my comprehension.” The meeting, he said, was a settlement negotiation concerning competing claims to the same property. “An $800,000 figure,” he said, “was an appropriate buyout.”

Mr. Didden and a business partner sued, and a federal judge dismissed their case in 2004. When the case reached Judge Sotomayor’s court, the United States Court of Appeals for the Second Circuit, Mr. Didden said he had reason to be hopeful.

“She was highly engaged,” Mr. Didden said of Judge Sotomayor’s questioning at the argument in 2005. The other members of the panel were Judges Reena Raggi and Peter W. Hall.

“We felt like we got our day in court,” Mr. Didden said. “We felt that she got the point.”

But then more than a year passed. In the end, the decision was terse and unsigned, and it rejected Mr. Didden’s claims.

“It took 54 weeks to issue those four paragraphs,” Mr. Didden said. According to the Administrative Office of the United States Courts, the median interval between argument and decision in the Second Circuit, both then and now, is less than a month.

The brief decision in Didden made two points. First, it said Mr. Didden had filed his suit too late. The village had announced the redevelopment plan in 1999, and Mr. Didden did not sue until 2004. His claim, the court said, was therefore barred by a three-year statute of limitations.

That was a curious ruling, Professor Epstein said, because it required Mr. Didden to sue over his claim of extortion before it happened.

The court also rejected Mr. Didden’s claim that Port Chester should not be allowed to take his property so that another company could build a different drug store. The takings clause of the Fifth Amendment — “nor shall private property be taken for public use without just compensation” — should not apply, he had argued, to such transfers.

Judge Roberts, at his confirmation hearings in 2005, seemed sympathetic to that kind of argument. The takings clause is uncontroversial when it is used to take property for public purposes like roads and schools. But it is a “basic proposition,” Judge Roberts added, that “government can’t take property from A and give it to B.”

No one disputes that Mr. Didden and his partner are entitled to be compensated for his property. Mr. Didden said the final amount had not been determined.

But Judges Roberts and Alito, at their confirmation hearings, said larger issues are involved in government takings.

“It touches some very sensitive nerves,” Judge Alito said. “Taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.”

Judge Roberts, who said he had been surprised by the Kelo decision, said he welcomed new state laws “saying we do not authorize the use of the power of eminent domain to take for a use that’s going to be from one private owner to another.” Such laws, he said, are “certainly an appropriate reaction to a court’s decision in this area.”

He added that the author of the majority opinion in Kelo, Justice John Paul Stevens, had said at a bar association meeting that he would have voted against the takings plan had he been a legislator rather than a judge making a constitutional determination. “The free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials,” Justice Stevens said in the speech.

By ADAM LIPTAK -- New York Times

Katrina Survivors Refuse to be Evicted to Homeless Shelter

2009-07-15T08:20:00.001-05:00

Controversial ACORN Group as Eviction Advocates?????????

Facing eviction on March 1st, survivors of Hurricane Katrina and members of the ACORN Katrina Survivors Association in San Antonio held a press conference this morning to announce they are refusing to let FEMA push them into a homeless shelter.

"I can't get an apartment without signing a 12-month lease," said ACORN member Yvonne Hayes, who has a 13-year-old disabled son. Ms. Hayes is a homeonwner and social worker in New Orleans and plans to move back to New Olreans once her home is repaired. She adds, "I'm being punished for wanting to go back to my home."

Families have been told their only alternative is to check into a homeless shelter until long term solutions can be identified. Although FEMA refuses to continue paying for hotels, many families still have cases pending. ACORN leaders and organizers have been working with city officials and FEMA to try to find a solution, but, as of this moment, none has been arranged.

Dems back S.A. judges for fed seat

2009-07-15T08:08:00.001-05:00

The Texas Democratic congressional delegation has submitted to President Barack Obama the names of three local women for a lifetime appointment to the federal bench, sources have told the San Antonio Express-News.

And according to these sources, 144th District Judge Catherine Torres-Stahl, 42, is the early favorite to replace U.S. District Judge W. Royal Furgeson who last year took senior status and moved to Dallas.

Before Torres-Stahl or anyone else becomes the nominee, he or she must still gain the support of Republican Senators Kay Bailey Hutchison and John Cornyn, who have their own judicial selection committee and can block any candidate.

Courthouse sources familiar with the congressional delegation's discussions said that Torres-Stahl, along with 407th District Judge Karen Pozza and San Antonio civil law attorney Sonia Rodriguez, were recommended to the White House.

“It is truly a short list, even shorter than that (the three),” one source told the Express-News on condition of anonymity because of the sensitive nature of the discussions. “She (Torres-Stahl) is the list.”

Another source said it was important to nominate a woman in San Antonio, the headquarters of the Western District of Texas, which includes Waco, Austin, Del Rio, Alpine, Midland/Odessa and El Paso. The San Antonio division has no female district judges.

Despite reportedly being told that she is the delegation's first choice, Torres-Stahl proceeded as normal last week, holding a Thursday fundraiser at the Tower of the Americas that kicked off her re-election campaign.

“I haven't heard anything” regarding the federal seat, she told the Express-News.

The sources, however, say she's been ordered to stay quiet until the White House's official announcement. The head of the delegation, Rep. Lloyd Doggett, D-Austin, declined to comment on any recommendations.

“Consultations between the President and the Texas Democratic delegation are ongoing,” Doggett said in a statement. “No name will be formally released until the process is completed.”

Rep. Charlie Gonzalez, D-San Antonio, likewise declined to talk about any candidates.

“I am not at liberty to discuss specific names that the delegation has forwarded to the White House for consideration,” he said. “We (the delegation) agreed with the White House that we'd keep that private.”

Before Torres-Stahl's name is submitted to the Senate, she must be vetted by the White House and by the Federal Judicial Evaluation Committee, which recommends candidates to Sens. Hutchison and Cornyn, who have the final say on the nomination.

If confirmed, Torres-Stahl will be among the youngest candidates named to the federal bench in San Antonio. Before becoming a state judge, she served three and a half years as a prosecutor on juvenile cases and appeals with the Bexar County district attorney's office.

She also served as a municipal judge for the city of San Antonio, where she ruled on ordinance violations and Class C misdemeanors for nine years.

In 2006, she took on longtime incumbent Mark Luitjen for the 144th District bench and won. She has been hearing felonies, including capital murder cases, ever since.

“We had supported Luitjen when he ran, but she has been just very, very fair on everything I've had before her,” said lawyer Van Hilley. “She has a very patient demeanor. ...I've been impressed with her judicial temperament.”

By Guillermo Contreras and Guillermo X. Garcia - Express-News

Bexar County to get 3 New CCL Judges

2009-07-15T07:58:00.003-05:00

The Bexar County, Texas Commissioners Court soon will appoint judges to three newly authorized County Courts at Law of Bexar County. The new courts were approved during the 81st Legislative Session and Gov. Rick Perry signed the bill into law.

Under HB 4741, which created the new courts, County Court at Law No. 13 must give preference to family violence cases. The remaining two courts will be County Court at Law No. 14 and No. 15

Bexar County Commissioners Court is responsible for filling a vacancy in the office of judge of a statutory county court, and the appointee holds office until the next general election is held.

San Antonio J.P. Featured in Negative Express News Article

2009-07-09T09:30:00.004-05:00

Today's San Antonio Express News contains an article entitled "JP's law license suspended after complaints" which details action taken by the State Bar of Texas against local Justice of the Peace Monica Caballero.

I do not personally know Judge Caballero, but have appeared before her several times on evictions and other cases. Despite the concerns she may have faced in her private law practice, she has always appeared to me to be fair and deliberative, and to have as a good a command on the law as any Justice of the Peace. From what I've seen, her judicial temperment has been fair, and she clearly understands Forcible Entry & Detainer law. She does not appear to me to be biased in favor of or against either landlords or Tenants.

While I understand the public appeal of the story and the EN's right to publish even the personal problems of a public figure, my opinion as an attorney who frequently handles evictions in and around San Antonio, is that Judge Caballero's problems do not disqualify her from serving as JP, or otherwise call into question her ability to perform the functions of the job.

I believe that calls for Judge Caballero's resignation and/or termination are unfounded.

Clean Water Restoration Act On Sentae's Agenda for Tomorrow -- Ranchers and Sportsment Remain Opposed

2009-06-17T17:06:00.001-05:00

It appears as if the United States Senate will take up the Clean Water Restoration Act (CWRA) tomorrow. This act would significantly expand federal jurisdiction over private ranches, and many ranching intersts believe that this bill amounts to a giant federal land grab and would be disastrous to U.S. agriculture.

Under current law, the federal government has jurisdiction over "navigable waters of the United States." However, the CWRA would bring federal oversight to activities that affect all "waters of the United States" as opposed to merely "navigable waters" as called for in the original CWA.

"Waters of the United States" is broadly defined in the legislation to include "all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments."

By removing the word "navigable" from the definition, the CWRA would expand federal regulatory control to unprecedented levels-essentially putting road ditches, drainage ditches, and stock tanks on my family's farm under the regulatory strong-arm of the federal government. Further, under the Clean Water Restoration Act, something as simple as constructing a duck blind on private land on or near prime hunting waters could require hunters to submit to a costly and time-consuming permitting process. Like hunters, fishermen and recreational boaters would also find it more difficult to engage in their sports under the CWRA because the construction of fishing piers and boat docks, which can already require a permit under the CWA,18 would likely see enhanced scrutiny under the CWRA. Such construction could be regulated in nearly every instance, as nearly every body of water would qualify for federal oversight.

In my opinion, this bill represents an expansion of federal government into private property rights, and should be opposed.

Farm and ranch groups want special session to toughen eminent domain law

2009-06-08T07:59:00.001-05:00

Measure passed by lawmakers calls for election to decide whether to restrict land seizure for economic development
LUBBOCK — Texas farm and ranch groups are glad lawmakers have taken steps to revisit eminent domain law but say it's "nowhere near" what's needed in a state where most land is privately held.

Texas Farm Bureau spokesman Gene Hall said that if voters approve a constitutional amendment in November, it would bring "improved but still bad eminent domain law" to the state.

"It's less than half a loaf," he said, describing the bill that emerged from the recently completed session. "The fight goes on."

A measure approved by lawmakers — House Joint Resolution 18 — puts a constitutional amendment on November's ballot that would prohibit the government from taking private property exclusively for economic development.

The move, negotiated by House and Senate lawmakers, addresses a 2005 Supreme Court decision that gave New Haven, Conn., the right to take private property and turn it over to private developers for retail development.

The Institute for Justice, which represented the property owner in the Connecticut case, Kelo et al v. City of New London, has called the amendment "dangerous" and said it still would allow governments to take land for economic development. The group says eminent domain should only be allowed for public-use projects such as a new courthouse or library, and it supports the House version of the amendment, which it says has stronger protections for property owners.

The proposed amendment would specify what qualifies for eminent domain projects, but allow exceptions with the support of two-thirds of each legislative chamber.

Together with Texas cattle industry groups, the Farm Bureau is hoping that Gov. Rick Perry will call a special session and that eminent domain will be on the list of items to be discussed.

Perry has not said whether he intends to call a special session.

If he does, the additional protections for private property owners that were part of SB18 — a bill that died in the Legislature — should be taken up, said officials with the Farm Bureau, Texas Cattle Feeders Association and the Texas and Southwestern Cattle Raisers Association. Those provisions include offers that represent fair market value, compensation to landowners for diminished access to their property and the right to repurchase the land at the same price for which it was sold if nothing is done with it after 10 years.

Texas leads the nation in private property ownership, having three times more than any other state.

Perry and U.S. Sen. Kay Bailey Hutchison have both indicated that eminent domain probably will be a campaign issue in their 2010 Republican primary.

A spokesman for Sen. Craig Estes, R-Wichita Falls, the author of SB18, said the lawmaker was "very disappointed" that the bill did not survive. But the issue is far from gone, spokesman Jody Withers said.

"I think there's a general agreement that the provisions ... are still needed," he said.

A spokesman for a group outside the agriculture industry that is pushing eminent domain reform came away from the legislative session less distressed than those tied directly to the industry.

"Property rights are very important and always need to be addressed, but I think we've made great progress here, and I don't see an urgency to deal with the issue now that HRJ18 passed," said Bill Peacock, director of the Center for Economic Freedom at the Austin-based Texas Public Policy Foundation.

If Perry doesn't call a special session, projects will go forward quickly while eminent domain restrictions remain the same, said Kirby Brown, executive vice president of the Texas Wildlife Association, a nonprofit that works to conserve, manage and enhance wildlife and its habitat on private land.

"We do expect them to do that," he said. "I think it would be naive of anyone not to fast track projects and use the current eminent domain process to avoid what SB18 would have protected landowners from. I'm not optimistic."

By Betsy Blaney, ASSOCIATED PRESS

Record Keeping and the Standard Property Management Agreement

2009-06-02T22:14:00.002-05:00

Are you an Investor with rental properties in Texas currently under management by a broker or other property manager? Or perhaps you are a manager charged with overseeing and manager rental or investment properties owned by another. Chances are, if you own or manage rental properties in San Antonio, you will be confronted with a property manager's record keeping obligations under the standard Texas Association of Realtors ("TAR") Residential Leasing and Property Management Agreement (TAR Form 2201).

This form requires that the property manager remit to the property owner EACH MONTH a statement of receipts, disbursements, and charges. This means that an Owner should be receiving MONTHLY communications from the manager reflecting rental and other income, as well as a statement of disbursements (such as repair/maintenance costs incurred, utilities paid, management fees collected, and general costs of marketing or opertaing the property). Failure to remit these statements could be considered a breach of the Management Agreement, and could invalidate the manager's right to future management fees.

While there is no particular form prescribed for the statement, its required contents (including actual receipts) are fairly straight-forward. The prudent property manager will use the MONTHLY STATEMENT requirement as an effective tool to communicate with the owner/client, and as a tool to analyze whether the property is receiving its maximum return.

Texas Eminent Domain Bill Progressing Through Legislature

2009-05-22T18:10:00.002-05:00

The highly anticipated eminent domain bill (SB 18) could be voted out of the Texas House and be on its way to Governor Perry as early as this Saturday. The bill is scheduled for second reading today, which means it will be read on third reading Saturday while the House is in session. The Bill passed out of the Texas Senate on May 7, 2009.

Earlier this week, the House Land and Resource Management Committee voted the bill out of committee with a few amendments (also called Committee Substitutes). All provisions critical to property owners were left intact.

Both the United State and Texas constitutions require that the taking of private property must be for a "public use," and that when an authorized entity takes private property for a "public use" that it must compensate the owner for the property taken. The exercise of the power of eminent domain is generally recognized as a necessary tool of government; however, many have argued that over the years this power has been expanded and used in ways that are improper.

C.S.S.B. 18 makes changes, additions, and deletions, to various provisions in Texas law in an attempt to reform the power, limitations, process, and various other aspects of the power of eminent domain and condemnation in this state.

To see the Legislature's Analysis of the Bill and its specific provisions, click here.

Ranch is Nation's Largest Piece of Property For Sale

2009-05-22T17:39:00.004-05:00

They say everything's bigger in Texas, and ranches are usually not the exception to that Rule. We enjoy many of the nations largest ranches, with such legends as the King Ranch, XIT, and Waggoner, Texas is legendary for its wide open spaces.

But the largest piece of property for sale in the United States today is New Mexico's Bell Ranch. At 290,100 contiguous deeded acres, the ranch comprises 453 square miles. By comparison, the entire City of San Antonio had a total area of 412.07 square miles (source: 2007 U.S. Census).

The Bell Ranch was assembled 40 years ago by the heirs of William Lane. It features Bell Mountain, a dramatic butte punctuating the landscape of San Miguel County just east of Santa Fe. The Canadian River flows through the property for over 13 miles and the Hacienda is 10,832-square feet with swimming pool and tennis courts. The headquarters includes a general manager residence, lake house, ranch offices, stables, barns, garage, and storage facilities. Cowboy camps are located throughout the property, as well as thousands of untouched acres and an airfield with storage for 100LL avgas and a large hangar.

The Bell Ranch supports blue quail, mule, whitetail deer, dove and Barbary sheep. The adjacent 9,600-acre Conchas Lake provides a warm-water fishery for bass, walleye, bluegill and crappie, in addition to canoeing, sailing and water skiing.

For those of you interested in putting in a bid ...the current asking price is $103 million ($103,000,000.00) - $99 million for the land and $4 million for the livestock and equipment. This comes out to $341 per acre.

Also, our law firm represents ranches throughout Texas, but if you buy the Bell, give me a call, and I'll get licensed in New Mexico too!

R L Wilson to Represent Uvalde Rancher in Probate Estate Battle

2009-05-22T09:19:00.003-05:00

On May 21, 2009, R L Wilson Law Firm filed an appearance as attorneys for Rochele Hargrave, owner of the 1400 acre Cline Mountain Ranch in Uvalde County, and surviving spouse of Harvey Hargrave. Mr. Hargrave died on March 11, as the result of burn inuuries he sustained when his tractor fell into a fire pit when burning brush on the ranch.

Mr. Hargrave was the founder of H & H Well Service, Inc., and had retired with Rochele to Uvalde and Texas to ranch. His untimely death has set-off of dispute between his grown children -- all of whom work for H & H in Louisiana-- and his surviving wife.

Immediately after Mr. Hargrave's death, the surviving children moved to cut Rochele off from H & H, and began making demands for the return of various items and demanding access to her home on the ranch. One of the surviving children hired an attorney and has filed an application to be the administrator of Mr. Hargrave's Estate. Another has already moved to have the Estate probated in Louisiana, with Louisiana law to apply.

Our firm filed a counter-application in the Uvalde County Court at Law, wherein we seek to have Rochele appointed as Independent Administrator in accordance with the Texas Probate Code. This case will be complex as it implicates coice-of-law provisions, property division, and significant emotion. It is also a sad reminder of the importance of making a will -- especially when significant assets have been accumulated.

R L Wilson Law Firm files suit against Dallas-based real estate investment operation

2009-05-22T09:03:00.003-05:00

Suit was filed in the Bexar County District Court by R L Wilson Law Firm client Roland Rodriguez against Dallas-based Yorkstreet Properties, and its affiliate Yorkstreet Homes. In his suit, Mr. Rodriguez is alleging that the Yorkstreet companies have engaged in illgeal practices relating to the management of several investment properties he purchased through the company.

After the closing upon the sale of each of these properties our client entered into a verbal management agreement whereunder Yorkstreet agreed to locate tenants, to collect all rents as they become due, to tender to our client a monthly accounting of rents received and expenses paid, and to remit to the various mortgage lenders all rental income (if any), less any sums paid out. For a period of time after the closings, Yorksteet abided by the obligations of the management agreement. In exchange for their services, Yorkstreet retained a portion of the rents they collected as a “management fee.”

Eventually, Yorkstreet stopped remitting payment to the investor's mortgage lenders, even though rents were being collected. Despite the fact that they never maintained any claim to right, title or interest in the real properties, or the rental proceeds they had collected, Yorkstreet kept the rental proceeds.

As the result of Yorkstreet's refusal to remit the rental proceeds they had collected, each of the properties was foreclosed in accordance with the applicable Deeds of Trust. Mr. Rodriguez' interest in the properties, including future interest in rental proceeds, re-sale value, and tax deductions was forever lost.

In the suit, Rodriguez claims that Yorkstreet and its princiapl breached the management agreement, breached a fiduciary duty, converted the rental payments and committed fraud. In addition, Rodriguez alleges that Yorkstreet violated the texas Deceptive Trade Practices Act.

There is not yet a trial date in the case.

San Antonio Builders

2009-05-22T08:51:00.002-05:00

Last night I had the pleasure of attending the Greater San Antonio Builders Association Membership Mixer. The event was hosted by Morrison Supply Company at their wonderful facility located near the San Antonio airport.

The event was attended by a variety of builders, suppliers and vendors affiliated with the construction industry. I was impressed with the camaraderie between "competitors" who vie for a limited number of customers in today's tight economy. The GSABA group seemed dominated by fairly small-sized custom home builders, but the big builders were represented too. All told, the attendees came-off as hardworking small business owners operating in a very specialized industry.

Just like lawyers and virtually any other group, builders come in all shapes, sizes, personality types, and ethical standards. There are many good builders out there who are also great people. But there are also bad apples. Be very careful when choosing a builder or a lawyer! Do your homework, check references, and talk to past cusomers/clients. Ask lots of questions. The construction industry and construction law are very technical. Do not enter into naive relationships in either field.

I look forward to the next GSABA event, and am even considering putting together a team for their upcoming fishing tournament.

R L Wilson, P.C. Law Firm is now a member of the TSCRA

2009-05-06T17:34:00.003-05:00

R L Wilson, P.C. Law Firm and Trey Wilson are now proud Allied Members of the Texas and Southwestern Cattleraisers Association. The organization is a trade group that has long stood for one of Texas' most historic -- and important -- industries.

TSCRA was formed in 1877, when 40 Texas cattlemen joined together out of their common interest to end unbridled livestock theft. Today's association is a grass roots organization composed of cattle producers and operators of all sizes located primarily in Texas and Oklahoma.

TSCRA provides a strong, unified voice for producers and others concerned with legislation and regulation. Texas and Southwestern Cattle Raisers Association is made up of many different people and organizations from different backgrounds, ages, businesses and incomes.

TSCRA offers representation on legislative and regulatory issues by effective, articulate, volunteer leaders sensitive to the grass roots concerns of cattle producers. TSCRA leaders take on key policy- and decision-making roles with other national and state industry organizations. TSCRA monitors all of the issues and can act as a knowledgeable advocate for the cattle producer.

The association also offers support and assistance in the election of conservative, pro-agriculture policy makers. All of these efforts result in members receiving action reports and timely fact sheets on legislative and regulatory issues at the state and national levels.

The association between our San Antonio law firm and the TSCRA is a natural one. As an firm of attorneys dedicated to the protection of private property rights (especially water and land), and to the preservation of Texas' ranching heritage, R L Wilson, P.C. Law Firm has long admired the TSCRA's mission. Today we joined that mission, and look forward to becoming an active member of TSCRA.

Eminent domain reform approved

2009-05-04T19:31:00.001-05:00

A bill that would implement a second stage of reforms to Texas’ controversial eminent domain laws was approved by the Texas Senate this afternoon, including a provision to prohibit government land speculation.

The reforms were a key part of GOP leaders’ legislative strategy this session, to complete initial changes made two years ago on the politically sensitive issue — especially among staunch Republicans voters.

In 2007, the issue of eminent domain was a top issue, amid complaints by landowner groups, ranchers, business owners and others that some governmental entities were engaging in land speculation and that they were taking land at the behest of developers and other private interests.

The first stage of reforms designed to stop those practices took effect later that year.

Senate Bill 18 by state Sen. Craig Estes, R-Wichita Falls, would limit eminent domain takings of land for a public use only, require bona fide officers before land could be condemned and require fair compensation to property owners who lose a direct access to their remaining property.

The bill prohibits condemnation of land for private use, and changes procedures to initiate eminent domain proceedings by requiring any actions by governmental entities to be done in public and by a record vote.

In addition, the bill requires a bona fide offer by the condemning entity. If no bona fide offer is made, the entity seeking the condemnation would have to pay all fees incurred by the property owner, according to the bill.

The bill also requires all entities with eminent domain powers to register with the Comptroller of Public Accounts by Dec. 31, 2010 or risk losing their condemnation authority.

“Private property and the right to own it, and profit from it, is fundamental to not only our economic liberty, but also our personal liberty,” Estes said. “Senate bill 18 provides meaningful eminent domain reform and strengthens the rights of property owners against the use of eminent domain by government and other condeming authorities.”

The bill was approved 31-0. It now goes to the House for consideration.

One of the groups involved in earlier calls to change the eminent domain laws applauded the vote.

“Property owners know that Texas is growing and that our land and water will be needed to accommodate future growth, but that accommodation shouldn’t be at the expense of property owners,” Dave Scott, president of the Texas and Southwestern Cattle Raisers Association, said.

“Members of the Texas and Southwestern Cattle Raisers strongly believe that Texas property owners do not have enough protections under the current eminent domain law. Senate Bill 18 levels the playing field for property owners.

By Mike Ward - Austin American Statesman

Texans could get more time before foreclosures

2009-04-30T12:30:00.001-05:00

Texans would have more time to fix their troubled finances before losing their homes under a bill passed by the Senate last week.

Current law allows just 20 days for homeowners receiving a foreclosure notice to resolve their mortgage default, one of the quickest processes in the nation. The Mortgage Foreclosure Deferment Act would extend this notice period to 45 days.

It also would provide at least 14 days for an owner and 60 days for a renter to vacate a foreclosed property.

If the bill, which now goes to the House, becomes law, it would apply to foreclosures initiated after Sept. 1.

One in 10 Texas homeowners are at risk of default and foreclosure, according to a recent report from the Mortgage Bankers Association of America.

“Recent headlines tell the story that more Texans are at risk of losing their homes to foreclosure,” said the bill’s author, Sen. Craig Estes, R-Wichita Falls.

“This bill will give Texas homeowners more time to work with their lender to try and reach an accommodation to stay in their homes while meeting their financial obligations.”

Sen. Leticia Van de Putte, D-San Antonio, said home-owners could use the extra time to work with nonprofit groups that help negotiate loan modifications.

Texas Attorney General Greg Abbott, whose office has cracked down on foreclosure rescue scams, recommended that the Legislature allow a debtor more time to cure a loan default before a notice of sale.

The bill requires a notice of rights to be included with the default notice. The lender would have to provide contact information for a person authorized to assist the debtor on the delinquent loan.

Owners who have received foreclosure notices would have to notify any tenants of a pending foreclosure within five days.

“While most homeowners may never feel the threat of home foreclosure, it is an issue that can impact all of us when it strikes our neighbors, friends and family,” Estes said.

By JANET ELLIOTT, Houston Chronicle

TRCC Fines 3 Area Homebuilders

2009-04-29T07:19:00.000-05:00

The Texas Residential Construction Commission has fined several Texas home builders, including levying a $260,000 fine against a Victoria builder.

The $260,000 fine was against James Del White of J.D. White Construction for failing to pay consumer judgments, the misappropriation of or misapplication of trust funds, a failure to timely renew as a builder and a repeated failure to respond to a homeowner’s complaint.

The TRCC fined William Gaston of Austin’s Gaston Premier Homes more than $42,000 for failing to pay a consumer judgment and failing to timely renew as a builder.

Jaime Lozano of Lozano Construction in Edinburg was fined $40,000 for failing to provide a follow-up report to a state inspection and to respond to a complaint filed with the commission. The company also failed to register a home or to pay a home registration fee, state inspection process fee or late fees.

Texas homeowners can research registered builders or remodelers by visiting the commission’s Web site at www.TexasRCC.org.

More Media Coverage on Our Client -- Coach Randy Palmer

2009-04-08T19:51:00.003-05:00

Coach Randy Palmer, a client of R L Wilson, P.C. Law Firm received formal notice of his termination as the Athletic Director and Head Football Coach for the Poteet ISD this week. Cary Clack of the San antonio Express News published this unnerving but accurate analysis of the Coach's dilemna:

Last month, the Poteet school board voted to not renew the one-year probationary contract of its athletic director, Randy Palmer.

To dismiss a popular and competent administrator who, as head football coach, led Poteet High to a playoff berth in 2008, the board's reasons must have been unimpeachable.

One reason is that Palmer used a baseball field for football practice. That meant that instead of athletes running on the field with cleats, he had athletes running on the field with cleats, an unforgivable violation.

Another reason Palmer's contract wasn't renewed is, as Express-News reporter Zeke MacCormack wrote, "he failed to quell the outpouring of support for him after the board's preliminary vote Feb. 23 to not renew his contract."

So the school board's timeline looks like this: The board fired Palmer in a preliminary vote in February, and because he was so popular, there was an outpouring of support for him, and because he didn't use his popularity to stop the outpouring of support for him, the board fired him for good in March.

So if there had been no outpouring of support for him after he got fired in February, he wouldn't have gotten fired in March?

In essence, Palmer was fired in March because he couldn't keep people from being upset that he was fired in February.

How do you do that? What's in your strawberry shortcake to produce that logic?

This is Alice in Wonderland meets George Orwell meets H.G. Wells because somewhere in there you're going to need a time machine to make sense of it.

"Son, we're firing you?"

"Why?"

"Because when we announced we were firing you last month you didn't keep people from protesting that we fired you."

"So you're firing me because, after announcing previously you were firing me, people were angry that you were firing me, so to punish me you're going to fire me and anger more people that you're firing me?"

"Yes."

The day after the board's second vote to fire Palmer, in an admirable display of civil disobedience, more than 100 students at Poteet High left their classes.

You've done some good when that many students risk punishment for you.

What was Palmer to tell his admirers who have publicly stood in solidarity with him during the past six weeks?

"I appreciate your support and the fact that you are upset with my firing, but please do not show your support for me over my firing or I will get fired."

Since Palmer was fired because he didn't quell the outpouring of support after the preliminary vote to fire him, does the fact that he wasn't able to quell the support for him after the second vote to fire him mean that his next employer must fire him?

Do you even understand that last paragraph?

Neither do I.

But it's at least as clear as the reasons for firing Randy Palmer.

Kelo Rears Its Greedy Head in Houston

2009-04-08T19:45:00.001-05:00

For landowners, their is no more controversial case than the Supreme Court’s 5-4 decision in Kelo v. City of New London permitting the use of eminent domain to transfer private property from one owner to another under the guise of furthering economic development. In response to this 2005 decision, dozens of state legislatures passed bills curbing the effects of Kelo, including Texas, which made it illegal for a municipality to condemn property solely for private economic development. Yet that is exactly what Mayor Bill White and the City of Houston have seemingly done.

In a front page story, Sunday’s Houston Chronicle details the fate of a miniscule parcel of property - .09 acres - that lies at the very heart of a $12.5 million land sale.

“The complex case, involving a series of land transactions and a web of relationships between elected officials at City Hall and developers, raises the question of whether the city abused its power in taking land it now is hard-pressed to prove that it needed, land that a developer was seeking to control.

“It looks as if the city of Houston was all too eager to bulldoze the people — and condemn the property — that prevented a powerful political donor from realizing his ambitions,” said Andrew Wheat, research director for Texans for Public Justice, a nonpartisan watchdog group that has conducted several studies of the use of eminent domain law in Texas.”

Eric OKeefe: The Land Report

R L Wilson Law Firm takes On Case for Coach Randy Palmer -- Pro Bono

2009-03-24T16:29:00.004-05:00

In a renewed effort to prevent injustices throughout Texas, R L Wilson, P.C. Law Firm has undertaken the representation of Randy Palmer -- Athletic Director and Head Football Coach for the Poteet ISD. Coach Palmer is a man of stellar character, humility and impeccable credentials. He is a Pleasanton native who rose to the ranks of the NFL, and decided to return to South Central Texas to give back to his community. Unfortunately, South Texas School Board politics has consumed Coach Palmer's job, and he is fighting for his position at Poteet.

Attorney Bob Schaezler of R L Wilson, P.C. Law Firm has been Coach Palmer's public face during this trying ordeal. The media storm has been overwhelming, and Bob has appeared on KENS 5 TV, and on KTSA's Trey Ware radio show.

Watch the Video here.

By Zeke MacCormack - Express-News

POTEET — The school board’s latest spin of its revolving door for athletic directors unleashed a flood of tears and questions — and a walkout by angry students the morning after.

Trustees voted to not extend the contract of first-year athletic director Randy Palmer despite testimonials and demonstrations of support from many in a crowd of about 200 at Monday’s board meeting.

The vote means a fifth new coach in five years will lead the Aggie football squad. Under Palmer, the team went to the playoffs with a 6-5 season — which included beating archrival Pleasanton for the first time in at least 40 years, according to Express-News archives.

Trustee Dicki Lee Sparks, who backed Palmer, said many in the emotional crowd surrounded the board after the vote and wouldn’t disband for an hour.

“We had 15- and 16-year-old boys bawling and demanding to know why, asking ... ‘Why, why are you doing this to us?’” Sparks said. “They wanted answers.”

About 100 students left the Poteet High School campus in protest starting at midmorning Tuesday, Principal Andy Castillo said.

The students will be counted as absent, but whether the absence is excused will vary because “we evidently have some parents who were aware of where their kids were,” he said.

Two other coaches who are already with the district and have family links to trustees voting to oust Palmer have been mentioned as likely successors.

The high turnover among athletic directors is unhealthy for students, parent Irma Estrada told trustees.

“It’s not too late to do the right thing here and do what’s best for our kids, and that is to keep Coach Palmer,” she said.

Morgan Wagner, a senior on the Aggies offensive line, told trustees that Palmer was “liked and beloved” by most students.

But the board’s resolve against Palmer was even stronger than on Feb. 23, when trustees voted 4-3 to recommend termination of his contract, despite support for extending his $57,000-a-year contract by interim Superintendent Tim Coyle.

Trustees didn’t cite any specifics Monday before voting 5-2 for a motion that said terminating Palmer was “in the best interest” of the district.

“I still don’t understand why, what the reasoning is,” Palmer, 33, said early Tuesday. “There was a lot of people in support of me, and there were a select few against me.”

Trustee Barbara Reyes, who changed her stance to favor dismissing Palmer, could not be reached for comment.

School board President Mike McIntyre denied Palmer was dismissed so that a relative of a trustee could get the job, and he said Palmer will soon receive written notification of the basis for the board’s action.

“Once that happens, if he wants to disclose it, he can do it,” McIntyre said. “There are legitimate concerns, and if people were more aware of them there wouldn’t be such a big deal, but that’s sort of the nature of the beast. We’re given access to information that not everybody else gets to see.”

He said he respects the students’ right to express their displeasure but said of the walkout that the weeks before the Texas Assessment of Knowledge and Skills testing “is not the time to have this kind of distraction.”

Sparks said she waited to hear a valid reason for firing Palmer but that none was provided.

Fellow trustees cited “piddly little things, but nothing to me that would warrant someone losing their job,” Sparks said.

Superintendent Coyle said Palmer had no blemishes on his record.

“I can’t believe we couldn’t come to some kind of different solution,” Coyle said Tuesday, calling the mood on campus “disappointed and frustrated.”

R L Wilson, P.C. Law Firm Now Accepts Credit Cards and Paypal

2009-03-11T22:39:00.003-05:00

As part of the re-vamp and update of our flagship website R L Wilson, P.C. Law Firm now accepts credit card and Paypal payments online, over the phone, or as an added payment option for monthly invoices. The service is made available through a merchant account procured from the San Antonio Bar Association.

Our law firm merchant account is compliant with ABA and State Bar guidelines for credit acceptance. Unlike a standard merchant account, the Law Firm Merchant Account is designed specifically for the client-attorney transaction, and safeguards and separates client funds.

We hope that this new feature provides convenience to our existing and prospective clients, reduces our costs associated with billing and collections, and encourages prompt payment promptly by providing additional payment options.

Of course, we will continue to accept checks.

Rio Grande Valley Water Case -- View TCEQ Consideration of Our Request for Emergency Order

2009-03-08T07:59:00.006-05:00

On November 5, 2008, San Antonio Attorney Trey Wilson presented a request for Emergency Order to the Commissioners of the Texas Commission on Environmental Quality. The requested Order was intended to direct the East Rio Hondo Water Supply Corporation to restore water service to RL Wilson, P.C. Law Firm Clients Carl & Janel Parker and Carolina Ruiz. The Parkers and Mrs. Ruiz are elderly residents of Cameron County whose water service was terminated by East Rio Hondo Water when the residents refused to grant punitive easements requested by the utility.

On October 20, 2008 -- approximately 2 weeks prior to the TCEQ Agenda Meeting -- a staff attorney with the TCEQ issued a memorandum opining that the actions of East Rio Hondo Water were illegal. In the memorandum, the TCEQ staff attorney recommended that the TCEQ issue the Emergency Order requested by Trey Wilson. The final sentence of the Legal Recommendation of the staff memorandum was "The WSC has various avenues available to it, such as trying to work out an agreement with the customers or using its eminent domain powers, but terminating the customers' service is not one of them."

Undaunted, East Rio Hondo persisted in its illegal deprivation of water service to our clients. On November 5, 2008, the utility was called to task about its actions. The following Agenda item was considered at the TCEQ Commissioners' Agenda Meeting of November 5, 2008:

EMERGENCY ORDER

Item 73. TCEQ Docket No. 2008-1646-UCR. Consideration of a request by Carl & Janel Parker and Carolina Ruiz for an emergency order to require East Rio Hondo Water Supply Corporation to provide continuous and adequate water service pursuant to Section 13.041 of the Texas Water Code and Title 30, Section 291.14 of the Texas Administrative Code. East Rio Hondo Water Supply Corporation provides retail water service in Cameron County, Texas, under Certificate of Convenience and Necessity No. 11552. (Stefanie Skogen, Lisa Fuentes)

In the end, the TCEQ issued the Emergency Order, and our firm's clients' water was restored with State intervention. But East Rio Hondo didn't go down without a fight. The video of the fight is somewhat entertaining. To view a video of the TCEQ Commissioners' discussion of this item, Click HERE.

TEXAS REP. SOLOMONS PLANS REFORM OF HOMEOWNERS’ ASSOCIATION LAWS

2009-03-08T07:51:00.002-05:00

Press Release from Rep. Burt Solomons, R- Carrollton
Friday, February 27, 2009

AUSTIN -- State Rep. Burt Solomons (Carrollton) today announced plans for a sweeping reform of the state's homeowners’ association laws, including a constitutional amendment that would prohibit foreclosure of a homestead by a homeowners’ association. Solomons, a recognized real estate attorney in the North Texas area who served for fourteen years on the House committee with jurisdiction over homeowners’ associations, said the legislation is necessary. “It’s clear to me that while homeowners’ associations are valuable” said Solomons, “things have just gotten out of control with some of them. I think it’s amazing that in Texas the courts, not the legislature, have allowed homeowners’ associations to foreclose on a homestead.”

Solomons’ constitutional amendment, HJR 76, would give citizen of Texas the right to vote on whether to prohibit foreclosures by homeowners’ associations on homesteads, whereas HB 1976, filed today, proposes sweeping reforms to the operation of homeowners’ associations, including requirements to allow homeowners access to all homeowners’ association records, meetings, and to fair and transparent elections. Solomons’ proposed changes also give homeowners powerful tools to enforce the law. “Many homeowners’ associations have abdicated their responsibilities to management companies and attorneys who can not be held accountable and use penalties and attorneys’ fees to harass and intimidate homeowners who question the use of their association dues or the arbitrary enforcement of rules or bylaws,” stated Solomons. In response, he has proposed changes that will give homeowners greater access to the courts to battle homeowners’ associations by providing court and attorney fees to homeowners if the homeowners’ associations fail to comply with statutory requirements, as well as granting the courts the authority to assess fines against the associations.

The proposed legislative changes also address a myriad of issues which have negatively impacted homeowners, including priority of payment and prohibiting bans of solar panels. Homeowners are monetarily disadvantaged by prohibitions of solar panels, the use of which could dramatically lower the energy consumption and costs to homeowners. “At a time when the entire nation is focusing on renewable energy and the reduction of negative impacts on our air quality” said Solomons, “it is beyond me why we allow homeowners’ associations to ban the right of individuals to generate their own electricity in a reliable, environmentally-friendly method.”

The bill also addresses the priority of payment issue. While homeowners’ associations are currently prohibited from foreclosing on a home for failure to pay fines or attorneys’ fees, many associations will redirect a homeowners’ payment of association dues to pay for those outstanding fines or fees, which leaves their dues in arrears. Under the law now, failure to pay dues is the only reason for which an association may foreclose on a home; thus redirecting payments allows a homeowners’ association to foreclose on homeowners who have made good faith efforts to stay current with their obligations.

Solomons offered major reforms to homeowners’ association laws last session, but they died on the last day of session. “It is estimated that there are over 20,000 homeowners’ associations in Texas impacting citizen throughout the state,” said Solomons. “While some are conscientious about their fiduciary duties to their neighbors, others tend to operate like little fiefdoms. This is a strong property rights state and I believe we should ensure that homeowners’ associations can not intimidate and harass Texans out of their homes.”

Contact:
Bonnie Bruce, Legislative Director
Phone:(512)463-0487

Wrongful Water Service Interruption Case Makes the Valley Media Again

2009-03-07T17:29:00.006-06:00

Elderly residents to take Rio Hondo utility to trial
March 6, 2009 - 10:18 PM

By FERNANDO DEL VALLE/Valley Morning Star

RIO HONDO - Lawyers this week will take depositions from three elderly residents who claim the Rio Hondo Water Supply Corp. cut off water to their homes because they refused to grant an easement across their land for a water pipeline, an attorney said Friday.

Carl and Janel Parker and Carolina Ruiz plan to take the company to trial in state district court on May 13 for cutting off water to their homes on FM 510, Bob Schaezler, a San Antonio attorney who represents them, said.

Meanwhile, the water company has filed a request in state district court to condemn the customers' property. The company wants the land for a pipeline that is needed to provide water service to the growing area, said J.W. Dyer, a McAllen attorney who represents the company.

The customers claim the water company cut off their water because they refused to grant 20-foot easements for the pipeline, Schaezler said. "It's extortion," Schaezler said.

But Dyer said the company had the right to cut off water to Ruiz and the Parkers. The company said the water service was shut off because the customers failed to comply with an agreement that allows this action if an easement is refused, Dyer said.

The Texas Commission on Environmental Quality ordered the company to restore water service in the precedent-setting case, Andrea Morrow, a spokeswoman for the agency in Austin, said. "I have not heard of it before," Morrow said, referring to the company's action.

About 30 feet of land separates the customers' front doors from the proposed easement's edge, said family members who spoke for the customers. The water company refused the customers' officer of 10-foot easements, Schaezler said.

Ruiz's water was shut off for about three months last summer as the area recovered from Hurricane Dolly, said Patty Fajardo, Ruiz's granddaughter. Ruiz, who uses crutches to walk, hauled water from an irrigation canal to wash dishes, drank bottled water, and drove to her daughter's San Benito home to bathe, Fajardo said.
"She doesn't want (the water company) to have what she's worked for for so long," Fajardo said of her grandmother's refusal to grant the easement. "She worked out in the fields for years and years."

Dyer said Ruiz's home was damaged by Hurricane Dolly and she wasn't living there for months. But Fajardo said her grandmother remained in her home after the water was turned off. Dyer also said Ruiz wanted the company to pay her about $25,000 in exchange for an easement. But Fajardo denied her grandmother tried to sell the land.

Water to the Parkers' home was turned off from July 30 to 31 and Aug. 13 to 22, Linda Swartz, the couple's granddaughter, said. They used bottled water to drink and bathe, she said. The couple fears the company would cut some trees if they granted the easement, Swartz said.

But Dyer said the company would cut only one tree to install the pipeline.

TCEQ ordered the water company to restore water service to the customers.

In a Nov. 12 order, TCEQ said the company is prohibited by law from cutting off water if customers refused to grant it easements.

"I think (TCEQ) way overstepped their bounds," Dyer said of the agency's order.

Several Texans On List of America's 100 Largest Landowners

2009-02-28T07:57:00.005-06:00

One of my favorite publications, The Land Report, recently published its list of the nation's largest landowners. The magazine calls its list "the most comprehensive list of the nation’s landowning elite." I could hardly disagree.

It was no surprise that Ted Turner topped the list. With total land holdings of more than 2,000,000 (yes two million) acres, Turner has amassed an impressive, dare I say awesome, catalogue of exquisite ranches, in Montana, Nebraska, South Dakota, Oklahoma, Kansas, New Mexico. His Ranch holdings include the Bar None (23,000 acres) and Flying D (119,000 acres) in Montana, Vermejo Park in New Mexico(600,000+ acres bought from Penzoil), The Snowcrest, and even a property in the Patagonia region of Argentina. Despite the divergence in our politics, I am in awe of the conservation, wildlife and stewardship efforts of Ted Turner. He has consistently granted conservation easments, engaged in extensive habitat restoration and even mass fence removal. He owns a 45,000 head herd of bison, and has re-introduced several wildlife species to properties. Turner is serious about wildlife preservation and restoration, and frequently puts is money where is heart is. For this we lovers of great, wide-open spaces are eternally grateful. But... Turner is no Texan, and all of the money in the world cannot change that.

Texans -- native and transplant alike -- are well-represented on the list. Leading the pack of Lone Star empressarios are the King Ranch heirs, with a combined total acreage of 851,642 acres. The King Ranch is among the many reasons I am proud to call Texas home, and its history, triumphs and tribulations have been well-chronicled. Coming in at Nos. 12 and 13, respectively, are the Lykes Bros. Heirs from Florida who own approximately 240,000 acres in west Texas, and Governor Dolph Briscoe whose holdings were estimated at 560,000 acres. Notably, Gov. Briscoe, on whose Gato Creek Ranch I have hunted, "declined to confirm published reports of the size of the Briscoe Ranch."

Number 14 on the list is "the nation's largest ranch under one fence" owned by the W.T. Waggoner Estate. This contiguous parcel of 520,000 acres (approximately 800 square miles) is located near Vernon, Texas in Wise County. It was founded in the mid-1800's and maintains the "Three D" brand.

Number 15 is another Texas household name -- O'Connor. The O’Connor family’s ties to cattle ranching in South Texas date back to the 1830s, when Thomas O’Connor arrived from Ireland. Today, the descendants of D.M. O’Connor share ownership of an estimated 500,000 acres of ranchland in and around Victoria County.

The 18th, 19th and 20th biggest landowners all maintain deep and storied Texas roots.

Number 18 are the East family descendants. Their San Antonio Viejo and Santa Fe Ranches were assembled by Alice Gertrudis Kleberg East after she cashed out her interest in the King Ranch. She was a member of the Kleberg family -- owners of the King Ranch.

No. 19 is Anette Marion, heir to the Four Sixes Ranch Comprised of one-third million acres, the ranch has a storied history that began with a poker game and a winning hand of four sixes—reputedly, but not so. The real history of the Four Sixes began with Samuel Burk Burnett, who became one of the most influential and prosperous cattlemen in Texas. Before the age of 20, he purchased from Frank Crowley in Denton County a herd of cattle wearing the 6666 brand. Burnett recorded the brand in 1875 in Wichita County, Texas, on the Kiowa-Comanche Reservation in 1881and in other counties in years following. The Four Sixes Ranch continues today as a forerunner in the cattle industry, and maintains a breeding herd of some 7,000 mother Angus cows. The ranch is also recognized for its exceptional horses. The brand used on the Sixes’ horses is the same one burned on the first horses Burk Burnett bought.

No. 20 is a San Antonio legacy -- La Escalera Ranch owned by Builder Gerald Lyda -- the builder of projects as great as Texas Memorial Stadium (now DKR) The Tower of the Americas, La Cantera, Fiesta Texas and the Alamodome. La Escalera Ranch (III Brand) is one of the largest cattle ranches in Texas consisting of more than 320,000 deeded acres in five counties (Pecos, Reeves, Brewster, Archer and Baylor).

Other notable Texas properties are ranked 23 (Jeff Bezos -- 290,000 acres), Jones heirs (255,000 acres), Frank Yturria Ranch, Hearst Ranch.

To see the complete Land Report 100, click here.

Report: Real Estate Is Texas' 3rd Most Important Industry

2009-02-28T07:55:00.002-06:00

Real estate is the third most important private industry in Texas, according to the latest data from the U.S. Bureau of Economic Analysis.

The real estate industry accounted for 7.8 percent of Texas’ total gross domestic product (GDP) in 2006, ranking behind manufacturing (13.4 percent) and mining (9.8percent). “The GDP is the broadest measure of economic importance when looking at the overall economy,” said Dr. Ali Anari, a research economist with the Real Estate Center at Texas A&M University.

Anari studied the real estate industry’s role in the state’s economy and compiled his findings in the Center’s report, Texas Real Estate Industry Review, 2008.
While the GDP is an important indicator of overall economic health, Anari said other data can be just as valuable. “For instance, local governments may be more interested in knowing about tax revenues than GDP,” he said.

Other highlights from the Center’s report:

• Every $1 million of revenue in the Texas real estate industry generates just over half a million dollars of revenue in other parts of the state economy.
• Every $1 million of revenue in the Texas real estate industry generates 5.16 jobs in the state real estate industry and five jobs in other industries.
• $1 million of sales tax in the state’s real estate industry leads to a total of $1.26 million of sales tax in the Texas economy.
• The real estate industry has the largest proportion of self‐employed persons of all industries.
• Nearly 552,000 persons, including self‐employed individuals, were working in the Texas real estate industry in 2007, representing 3.9 percent of statewide employment.
• Texas commercial real estate in Texas was valued at more than $251 billion in 2007. Texas industrial real estate was valued at more than $85 billion.
• Taxes paid by the state’s real estate industry accounted for 18.7 percent of total Texas business taxes in 2007.
• Real estate owners paid an estimated $24 billion in school tax in 2007.

Source: Real Estate Center Texas a&m,

R L Wilson, P.C. Clients the Subject of Rio Grande Valley News Story

2009-02-24T08:36:00.005-06:00

Yesterday, R L Wilson, P.C. Law Firm clients Carl & Janel Parker and firm attorney Bob Schaezler were featured on a news story appearing on KVEO 23 -- the NBC affiliate in the Rio Grande Valley. The story concentrates on the pending litigation between the Parkers and their water provider, East Rio Hondo Water Supply Company (ERHWSC).

In July 2008 -- just days after Hurricane Dolly devastated the Rio Grande Valley, ERHWSC interrupted the Parkers' water service when they refused to grant the utility a 10' easement through their front yard. According to ERHWSC, the easement was needed for the installation of a new pipeline along FM 510 near Los Fresnos. When questioned about the need to place the easement just inches from the Partkers' front door and in the path of several trees cherished by the family (including a decades-old soft-shelled pecan tree), ERHWSC cited plans to "widen FM 510." However, these plans could never be confirmed by any non-ERHWSC source, and both Cameron County and TXDOT officials have indicated that no definite expansion plans exist, and that the funding for an expansion is not in place. Little details...

The Parkers, who are in their 80's, declined to give ERHWSC the destructive easement they requested. However, they offered ERHWSC a free easement of 5' in width. In response, ERHWSC disconnected the Parkers' water service -- even though they were current on all utility bills and had been ERHWSC customers for nearly 15 years. That's when the Parkers' daughter, who lives near Houston called me. Linda explained that, because of the culture of corruption in the Valley (her childhood home), she wanted an "outside" lawyer who was tough, knowledgable and experienced in water-related litigation.

After several unsuccessful efforts to reach a resolution with ERHWSC, we were forced to file suit against them for the purpose of having the Court Order that the Parkers' water service be reinstated. In August 2008 we successfully obtained a TRO compelling water service, and then moved the fight to Austin --- home of the Texas Commission on Environmental Quality. The TCEQ agreed with our position, and on November 22, 2008, issued an Order in which they found ERHWSC's disconnection of water unlawful, and ordered the ERHWSC to provide continuous and adequate water service to the Parkers -- irrespective of whether they granted an easement.

The fight has now returned to Cameron County, where the Parkers seek damages to compensate them for their time without water service -- weeks living off of irrigation cisterns and hauling water in containers -- and recovery of the substantial attorneys' fees and costs they've expended in responding to ERHWSC's illegal conduct. The case has been set for trial in Brownsville in May.

To see complete details on this suit, view my earlier blog post and a story that appeared in the Valley Morning Star newspaper on August 29, 2008.

Mystic Shores Residents File Suit Against Unscrupulous Builder -- Comal County, Texas

2009-02-20T20:48:00.003-06:00

R L Wilson, P.C. Law Firm today filed a lawsuit on behalf of its clients Larry and Lynda Restine against homebuilders JV Investments, Inc., Texas Hill Country Estates, and Joe Van Dyke. The suit, filed in the Comal County District Court, arises from material defects constructed into the Restines' Mystic Shores home by the homebuilders.

At least 35 construction defects alleged by the Restines have been confirmed by a Third-Party inspector appointed by the Texas Residential Construction Commission as part of the SIRP process. Though provided with a copy of the TRCC inspector's findings, the Defendants never appealed these findings. Accordingly, the contents of the inspector's report (that there are at least 35 items of non-compliance with TRCC standards)now constitute presumptions of construction defects in Plaintiffs’ home. See Tex.Prop.Code § 426.008(a).

In addition, the suit alleges that JV Investments, Inc., Texas Hill Country Estates, and Joe Van Dyke committed fraud and violated the Texas Trust Act by diverting the proceeds of the Restines' construction loan away from subcontractors and suppliers. The homebuilders drew 100% of the proceeds of the Restines' construction loan, but in many instances never passed these payments along to those who actually performed the work.

The Restines did not learn that many of the individuals and entities supplying labor and materials for the construction of their home were never paid until 77 days after they closed on and occupied the property. It was then that Joe Van Dyke executed an “Affidavit of Completion,” indicating that 20 suppliers and/or subcontractors on the residential construction project were not paid, and that a total balance of $52,394.10 was due and owing to such suppliers and subcontractors. Many of the unpaid suppliers and subcontractors have now filed liens against the home, thereby clouding the Restines' title and preventing them from re-financing the home to achieve a more favorable interest rate. In addition, various suppliers and subcontractors have threatened to commence lawsuits against the Restines in an effort to collect upon their unpaid Invoices. Others of the subcontractors have refused to perform repairs and/or corrections upon the residence because they were never paid.

This is not the first suit filed against the homebuilders in question. At least three other lawsuits have been filed against them by suppliers and subcontractors who were never paid. In at least one of these suits the unpaid subcontractors also sued the homeowners and sought to foreclose a mechanics lien.

The Restines seek unspecified damages in the lawsuit, and the full extent of their losses are not known. At this time, they are soliciting bids from new builders to repair the defects that they and the TRCC claim JV Investments, Inc., Texas Hill Country Estates, and Joe Van Dyke built-into the home. It is anticipated that the repairs will require the Restines to vacate the home and seek temporary housing for several weeks. In addition to costs of repair, it is anticipated that the Resines will face significant reductions in the fair market value of their home after the construction is completed.

The Restines are represented in their lawsuit by San Antonio Attorney Trey Wilson. Wilson also represented the Restines before the TRCC and guided them through the SIRP process, which was resolved in their favor.

Foreclosure postings upward bound in Bexar County

2009-02-12T14:56:00.002-06:00

Bexar County foreclosure postings reached a record high during the first quarter of 2009, according to newly released data from Foreclosure Listing Service Inc.

George Roddy Sr., president of Foreclosure Listing Service, says foreclosure postings are at the highest quarterly level seen in Bexar County since the company began tracking foreclosure data in Texas in 1963.

“Foreclosure postings in Bexar County have reached a new quarterly record level high,” Roddy says. “Topping 3,400 postings for the very first time, 3,447 foreclosure notices have been filed on real estate located in Bexar County for the first three foreclosure auctions of 2009. This represents the seventh consecutive year that foreclosure postings filed for the first quarter in Bexar County have increased.”

In January, a total of 1,081 homes were put up for auction in Bexar County. In February, 1,261 homes hit the auction block, a record number for a single month. Finally, some 1,105 homes are slated to be put up for sale at the auction scheduled for March 3.

Foreclosure activity in the first quarter of 2009 is up 26 percent compared to the first quarter of 2008.

“Just when you think that surely foreclosure postings will not get any higher, we see another increase in activity,” he says.

SA Business Journal

Texas sets aside $7.5 million to help Countrywide customers

2009-02-12T14:55:00.000-06:00

Texas Attorney General Greg Abbott on Wednesday launched a restitution program that makes $7.46 million available to eligible Countrywide Financial Corp. mortgage customers who lost their homes due to foreclosure.

Last year, the state reached a $345 million settlement with Countrywide benefiting Texas homeowners. The attorney general’s office alleged that Countrywide encouraged homeowners to accept loans they could not afford, failed to fully disclose risky loan terms to borrowers, and wrote loans to unqualified borrowers in order to increase market share.

“Last year we investigated Countrywide and reached a sweeping agreement that included loan modification opportunities for nearly 30,000 Texas homeowners,” Abbott says. “With today’s announcement, we are implementing the final portion of our agreement and making restitution funds available to Texans whose homes were lost to foreclosure.”

Restitution money is available to Countrywide customers in Texas who lost their homes to foreclosure — or whose payments were 120 days behind as of Oct. 6, 2008.

Previously announced aspects of the 2008 settlement included $335 million in loan modifications for about 30,000 Texans. The company changed the terms of homeowners’ mortgages to make them more affordable to affected customers. Also, about 1,400 Texans who are either in default or likely in default on their subprime mortgages who “voluntarily and appropriately” turn over their homes are eligible to receive up to $2,000 each as part of a Relocation Assistance Program.

Charlotte, N.C.-based Bank of America (NYSE: BAC) — which bought Countrywide last year — will distribute application forms to eligible homeowners.

TRCC issues its first lifetime ban to builder

2009-02-11T22:20:00.000-06:00

For the first time in its history, the Texas Residential Construction Commission has issued a lifetime ban to a home builder.

The commission Wednesday permanently banned Affiliates LLC, which did business as First Home. The builder has no San Antonio ties, but built in the Central Texas cities of Jarrell, Taylor and Belton.

The lifetime ban also applies to the company's agent, Pete Stucky, who now is prohibited from participating in any home-building-related ventures in Texas.

“This has been a big deal not only for us, but for the community generally,” said Duane Waddill, executive director of the TRCC. “It's important that builders know we're serious, and we're not going to let people get away with defrauding homeowners and not treating people fairly.”

The commission began investigating the company in September 2008 after more than 100 homeowners logged complaints about the company and shoddy construction. Stucky built about 150 homes total.

The TRCC banned the company for not making repairs on defective products still under warranty, claiming properties were free of liens when they were not and for doing business as First Home, a name not registered with the commission.

By Creighton A. Welch - Express-News

From $80,000 a year to eviction: Hard times in America

2009-01-28T11:54:00.000-06:00

(From CNN) -- Amber Easton has gone from $80,000 a year in salary to scrambling for work. At a time in her life when she should be scaling the corporate ladder, she has instead spiraled into a deep depression. She recently lost her car and now faces eviction from her apartment.

Just last week, the 35-year-old longtime working professional attended two job fairs with friends in the Detroit area. They stood in line for over three hours with hundreds of professionals of all types.

"It was a real eye-opener to see the caliber of people we were in line with -- very educated with vast skill sets," Easton said in an e-mail. "Afterwards, we went to the restaurant located in the same hotel and it was filled with unemployed professionals sharing their story, from engineers to graphic designers to marketing professionals."

Easton's saga began in July 2007 when she traded in her job as a corporate compliance officer to attend law school, what she thought would help advance her career. But after a year of law school, she decided it wasn't for her. By then, her old job was gone and the job market had shrunk.

"It's hard not to be depressed during a time like this," she wrote iReport.com. "I never imagined in a million years that I would be in such a situation at my age and at this point in my career. I am humiliated. I am praying for everyone else out there is who are facing the same problems."

She has applied to 70 different companies but gotten few leads. She recently went through a rigorous interview process for one job in another state, but to no avail. Share your economic survivor story

Every day, she searches for new job possibilities and every day results in more desperation. She estimates she's making $20,000 -- "if that" -- as a contract employee working from her home. "I just haven't made enough to keep up."

Her Detroit neighborhood a couple years ago was booming, she said, but now "it's like a ghost town around here."

"It's bad everywhere, but it's so, so bad here," she said.

Across the nation, people like Easton are feeling the pinch. Good jobs have evaporated. Former full-time employees are now working part-time contract positions just to get by.

Nearly 2.6 million jobs were lost during 2008, the highest yearly total since the end of World War II in 1945. This week alone, major corporations have announced more than 80,000 job cuts, bringing this year's total to well over 200,000.

Dr. Rosalind Dorlen is a clinical psychologist in Summit, New Jersey, an area she calls a "Wall Street ghetto" where formerly high-flying executives are out of work.

"Here, the people earn millions of dollars with bonuses that are astronomical," said Dorlen, who is also the public education coordinator in New Jersey for the American Psychological Association. "There is a demoralizing aspect to having a huge salary and a huge bonus and then having to look for a job that is going to pay much, much less."

She added, "What I'm hearing is a terrible sense of betrayal, anxiety and people experiencing lots of stress." That, in turn, can lead to an increase in unhealthy coping behaviors, such as an uptick in alcohol consumption, unhealthy eating and worse sleeping habits.

Dorlen has several tips for people out of work:

• Don't panic;

• Find a support group, even if it's just an informal group of friends;

• Seek employment counseling when available;

• Be professional in your job hunt;

• Network with other professionals;

• Take time to exercise during hard times;

• Spend valuable time with your family.

On a practical note, she said people should contact their creditors to let them know the situation. She also advises people to do volunteer work and to cultivate a "spirit of optimism."

"Bad times pass, and it's sometimes hard to see that when you're in the throes of a terrible place," she said. "I think we do need to hold onto a spirit of optimism and a sense of confidence." See Top companies: They're hiring!

"I think we're getting mired in the gloom and doom, and we need to hold on to the fact that lots of people are working."

CNN's user-generated site, iReport.com, has been flooded with messages from people out of work. One woman held up her husband's résumé and said, "Please, please, please take him off my hands." Watch woman plead case for hubby

"My husband can knock out a honey-do list like nobody's business, and he meets my great, high standards every day. Don't let my husband slip through your hands. He would be a great addition to your team," the woman said under the headline "Wife Seeking Job for Husband."

In Delaware, Manoj Philip, 24, said he had a full-time job in 2007 with Agilent Technologies making about $55,000 a year, including all the perks and benefits that came with it. But in July 2007, he quit that job to pursue a career in real estate.

"I knew it wasn't going to be easy, but I didn't think it would be this tough," he said.

By September 2008, Philip needed a second income because of the withering housing market. He picked up a full-time contracting job and continues to do real estate about 20-30 hours per week.

It was a shock, he said, to return to full-time work while putting his real estate dreams on hold. "It took a lot for me to change that mental outlook. Because before I would've thought of it as something holding me back," Philip said. "But I don't look at it like that anymore."

He's since learned the value of living within his means, budgeting and making every dollar he spends count for something. "These are really important lessons to learn. I'm glad I learned it at such a young age."

In Detroit, Easton said she knows America will bounce back at some point, but "in the meantime, people are losing everything."

"That's what scares me," she said.

Antiquated Laws Remain on the Books in Texas

2009-01-12T10:04:00.000-06:00

On April 26, 2007, the Texas Senate passed a bill which, if signed into law by Governor Perry, would repeal the authority of the “Texas Commission of Control for Texas Centennial Celebrations” to condemn historic properties in observance of our State's 100th anniversary. The House passed this measure on March 20, 2007. While the Centennial Celebration was by all accounts a legendary party, it ended in 1936! Texas is now 171 years old, but state law still allows an agency to condemn private property for a shindig which very few living Texas can even remember.

This is just one of many outdated, unnecessary and sometimes comedic laws, ordinances and regulations that remain on the books in Texas. A brief survey of enactments by our elected officials reveals the often silly and sometimes Draconian results of the parens patriae mentality.

The Texas Penal Code is replete with interesting provisions. Did you know that it is illegal to trip a horse, communicate betting odds, or look into a neighboring hotel room? Another antiquated section of our Penal Code attracted national attention in 2003 when a Cleburne woman was busted for possessing “obscene devices” with an “intent to promote” them. Her arrest was the result of a sting operation conducted by undercover police officers posing as a married couple in search of a sex aid. As a sales consultant for Passion Parties – a company which employs consultants to host seminars in their homes to hawk gels, lubricants, and edible puddings -- the former teacher claimed that the self-pleasuring devices were simply part of her inventory. While the viability of that defense was dubious, she likely could have relied on Section 49.23(g) of the Texas Penal Code, which vindicates persons who possess or promote obscene material or devices “for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” After much reflection, I must admit that I cannot conceive of a bona fide medical or legislative reason to possess an “obscene device.”

The East Texas town of Nacogdoches is famous for its witty ordinances. At one time it was against city law for "young women" to indulge in the culinary delights of raw onions after 6 p.m. Another deleted provision required wives of drunks to administer a "large dose of castor oil." Today, Ordinance 46-2 prohibits any person from using “a body of water in the city, which contains sewage… or waste for swimming or bathing purposes.” So much for taking a therapeutic bath at the Nacogdoches sewer treatment plant!

In Mesquite, you commit a misdemeanor if you fail to return a library book after receiving notice that it is overdue, while causing “material distress, discomfort or injury” by an unreasonably strong odor will get you cited in Texarkana. Mischievously ringing a doorbell is a misdemeanor in Temple, and simply engaging in “annoying pursuits” is banned in Port Arthur.

Here in San Antonio it is illegal to spit upon sidewalks, crosswalks, theaters and the floors of churches. It is equally impermissible to “climb pecan trees in any public park or street…or to throw sticks or stones for the purpose of gathering pecans.” Perhaps the most egregious and obtrusive legislation of all is San Antonio Ordinance 21-21 which prohibits the sale or use of a "liquid string, silly string, or super string" during Fiesta! There must have been at least several thousand scofflaws at the Battle of Flowers parade last week.

While some unusual laws made historic sense, others seem to have no rational basis in any era. Fortunately, or unfortunately – depending on your perspective - seemingly absurd legislation is not a thing of the past. Just last Session, the Texas House of Representatives passed a bill that would have reduced funding for schools whose cheerleaders performed “sexually suggestive” routines. The Senate apparently did not share the lower body’s concern over the manner in which bawdy cheerleading jeopardized the well being of Texans everywhere, and the bill died in Committee. I heard that the line was 14:9 that it will be re-introduced this Session! If not, rest assured that legislation of an equally incongruous nature will be introduced, and some of it will become the law of the land.

What Are the Elements Necessary to Acquire Title to Land in Texas By Adverse Possession ?

2009-01-10T09:55:00.009-06:00

Many landowners are vaguely familiar with the concept of "adverse possession." We've all heard stories of neighbors moving their fencelines to acquire title to chunks of a neighboring property, or of "squatters" claiming ownership of another's land after trespassing for many years.

Adverse possession is a "hot" topic in many parts of the country. During 2008, alone, the Legislatures of New York and Colorado made significant changes to those States' adverse possession laws.

However, as a Texas real estate and water rights lawyer and longtime advocate of landowners' rights, I remain convinced that the topic of adverse possession is not as important or as controversial anywhere as it is in the Lone Star State. After all, the story of we Texans is one of private property ownership. Beginning with Ausin's Colony, our history has been one of abundant land available for permanent and unalienable ownership. To me, it is little wonder that settlement of Stephen F. Austin's colony from 1821 to 1836 has been called the most successful colonization movement in American history. It's also little wonder that Texas caselaw is full of Court decisions relating to claims of title to land by adverse possession.

Yet, despite the vague familiarity of many people with the concept of adverse possession, few seem to truly understand its nuances, or how it can be established.

“Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002). To establish title through adverse possession, “the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex.1948. The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).

In determining what will amount to adverse possession, considerable importance is placed on the nature of the land and its use. Wall v. Carrell, 894 S.W.2d 788, 800 (Tex.App.-Tyler 1994, writ denied).

A party claiming adverse possession must prove:

1) actual possession of the disputed property,
2) under a claim of right, and
3) that is adverse or hostile to the claim of the owner and that it was consistently and continuously so for the duration of the statutory period.

Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex.App.-Texarkana 2002, pet. denied); Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex.App.-Waco 2000, pet. denied).

Texas Courts have had occassion to examine each of the "elements," separately, and have expanded on what is required to demonstrate them. The following is a brief survey of those Courts' interpretations of adverse possession law.

1. Possession

Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990).

2. Claim of Right

‘Claim of right’ ... means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession. Boyle v. Burk, 749 S.W.2d 264, 266 (Tex.App.-Fort Worth 1988, writ denied); see Tran v. Macha, 50 Tex. Sup.Ct. J. 186, 187, 213 S.W.3d 913, 915 (Tex.2006) (per curiam) (“[T]here must be an intention to claim property as one's own to the exclusion of all others....”).

3. Hostility or "Adversity"

The "test of hostility" is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Taub, 75 S.W.3d at 626; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex.App.-San Antonio 1998, pet. denied). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex.2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.

How Long?

The question of how long one must "claim" owenership or possession of land in order to establish title through adverse possession is a highly technical one. Texas Law presecribes adverse possession under three (3), five (5), ten (10), or twenty-five (25) year limitations periods. Each of these periods, and their separate requirements (which differ in many respects), are set-forth in Chapter 16, Subchapter B, of the Texas Civil Practices & Remedies Code.

A detailed explanation the applicability and distinctions between the 3, 5, 10 and 25 year adverse possession periods could (and possibly will) be the subject of another complete blog posting. However, irrespective of which limitations period is implicated, proving title by adverse possession is complex and highly burdensome.

It is important to understand one seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). Inferences are never indulged in the adverse claimant's favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985). Accordingly, a landowner seeking to prove or acquire title to land by adverse possession should secure the advice, counsel and assistance of an experienced real estate lawyer.

Trey Wilson is an attorney in San Antonio, Texas, and princpal of R L Wilson, P.C. Law Firm. His Texas-wide practice focuses on real estate law, water law, construction law and evictions. he may be reached at 210-223-4100 or www.sa-law.com.

Attorney General Abbott Files Action To Halt Business Of Unlicensed Home Warranty Company

2009-01-09T06:51:00.003-06:00

National Home Protection, Inc. also cited for deceptive trade practices

AUSTIN – Texas Attorney General Greg Abbott today charged a New York-based home warranty company with unlawfully doing business in Texas. The state’s enforcement action seeks to prevent National Home Protection, Inc. from doing business in Texas until it is licensed by the state and complies with requirements of the Texas Occupations Code. The Attorney General also is seeking restitution for Texas homeowners who purchased the defendant’s warranties but did not receive the services they were promised under the warranty contracts.

According to state investigators, National Home Protection continued selling “residential service contracts” to Texas homeowners even after the company was specifically informed about licensure and other requirements. The defendant ignored the Texas Real Estate Commission’s demand that it cease operations in Texas and return any money received from Texans. Meanwhile, Texas customers continued to complain that the company refused to repair or replace various home systems.

The state’s enforcement action charges National Home Protection with violating the Texas Occupations Code by failing to obtain a license, maintain a funded reserve against their liabilities and file annual reports with the state. The company also is charged with violating the Texas Deceptive Trade Practices Act (DTPA) by operating without a license in Texas.

In addition to homeowner restitution, the state is seeking civil penalties under the Occupations Code and up to $20,000 for each violation of the DTPA.

Texas homeowners who believe they have been defrauded by similar practices should contact a private attorney experienced with residential construction defects and real estate law. San Antonio attorney Trey Wilson is experienced at real estate-related lawsuits. He was recently named as one of San Antonio's best real estate litigation attorneys by Scene in SA Magazine. Trey Wilson may be reached at (210) 223-4100 or online at www.sa-law.com

AVERAGE HOA COSTS IN SAN ANTONIO

2009-01-08T07:59:00.000-06:00

Annual homeowners association fees can include a transfer fee, reserve or capital improvement fee as well as monthly, quarterly or annual dues. They differ by size, the number of homes in an association, and the amenities provided.

Transfer fee for single-family home
$100 to $150 one time

Annual dues for single-family homes
0-99 units: $250-$400 without a gate or other amenities and $500-$700 with an entrance gate

Pools
100-299 units: $250-$400 without a pool; $350-$500 with a pool 300-699 units with a pool: $450-$600 700+ units with a pool: $350-$500

Condos and Townhomes
$150-$250 per month, which usually includes waste disposal and water service

Source: Express News (2/28/08) quoting Spectrum Association Management and Glenn Clarke

Homeowners Associations: The final authority? from the San Antonio Express News

2009-01-08T07:56:00.002-06:00

Like many homeowners, Charles Shirley viewed his home as his kingdom: A place where he could rule over the home's colors, design and landscaping as he chose.
The only problem was that some of his neighbors felt the same way. Without a homeowners association, neighbors parked cars on their lawns. One homeowner ran a mechanic shop out of his home garage.

So when Shirley decided to build a new home near Canyon Lake five years ago, he was glad that the Estate of Oak Shores had strict limitations on the height of each building and how long neighbors could leave their boats sitting outdoors.

"We have height restrictions; and in some cases each lot has different restrictions, so as not to block the total view of each house above them to maximize the value of each lot," said Shirley, who helps enforce the Estate of Oak Shores' rules as part of its architectural control committee. "It was a selling point. It protects the property values of what you are investing in."

In many communities, homeowners or condominium associations have final authority in most aesthetic matters — with the ability to sue a property owner, assess penalty fees and even foreclose on a property if the fees aren't paid — because buyers agree to it when they purchase the land or home in the subdivision.

So homeowners associations, called HOAs, are not for the owner who wants total control over when the trash can is placed on the curb or whether to convert the garage into an apartment for the in-laws. Home buyers should weigh the tradeoffs when deciding to buy or to build in a community governed by an association.

HOAs began as an option that homeowners could select to join, like any other social group.But in the 1960s, cities and counties began encouraging developers to set up mandatory HOAs that required all homeowners to participate.

Now, before starting construction, most developers set up a nonprofit organization for the HOA with the Texas secretary of sate and then write all governing rules and restrictions. This includes the HOA's duties and the homeowners' responsibilities, and these are kept in a public document called the Declaration of Covenants, Conditions and Restrictions, or DCC&Rs, which is filed with the county clerk's office. Homeowners can challenge those by submitting requests for changes to an association's architectural control committee or the HOA board. But they must abide by their decisions.

Associations have taken leadership on environmental issues such as smoking and conservation. It is increasingly common for associations that govern condominiums to ban smoking even inside individual units to limit recycling of smoke-filled air through the common air filtration system, said Mark Nash, a real estate broker and author of "1001 Tips for Buying and Selling a Home." Nash surveys agents nationwide on the hottest buyer trends each year.

In one subdivision along Bulverde Road, homeowners pay an extra $15 dollars per month for a conservation preserve and "conservation association" that must permanently protect the natural habitat in an area near their homes, according to Andy Hill, CEO of Spectrum Association Management, a company that manages 140 HOAs in Texas.

But the associations also provide amenities (such as the mini-waterpark with a "lazy river" at Cibolo Canyons) that most homeowners could not afford individually.

So, many new-home buyers expect to be governed by an HOA, agents say. "It's an expected situation that you will have that extra set of dues going out every so often," said Kara Sagebiel, an agent at Coldwell Banker D'Ann Harper Realtors.

But an HOA's amenities come with a price. Condo fees tend to run at least $150 each month. Homeowners association dues range from around $20 to $70 a month, depending on the types of amenities and size of the community, Hill said. That's partly because HOAs tend to buy insurance to protect themselves in case of accidents or lawsuits, and pools are expensive to insure. Plus, gated communities also must maintain roads and streetlights in their communities.

Dues can fluctuate, too. In Summerfield near Northwest Military Highway and Wurzbach Parkway, the HOA just voted to increase dues from $210 per quarter to $231 per quarter to enclose the walking trails that border a new subdivision and public park. The playground equipment was vandalized recently.

"We're seeing an increase in property crime in this part of the city. And although we are a gated community, I just sensed that more safety on the street would be helpful," said Bill Thomas, board president and a five-year Summerfield resident.

The Summerfield HOA also wanted to stay on track with saving to repave the streets that connect the community's 430 homes in seven years. Workers paint a fence in the Summerfield subdivision. The homeowners association maintains common areas as well as inspects properties to ensure rules are followed.

Homeowners also must abide by the covenants and restrictions in mandatory associations — or face legal action. Many HOAs issue a handful of written notices asking a homeowner to fix a violation or to pay dues within 10 days if they have fallen behind. If nothing happens, then the HOA issues a final notice, giving the homeowner 30 days to respond, before turning the issue over to an attorney.
If the homeowner owes unpaid dues, then the HOA can file a lawsuit to collect. If the homeowner ignores a judge's order to pay the dues, then the HOA can start foreclosure proceedings.

But most HOA boards are loath to foreclose, said Hill of Spectrum Association Management. "They are not trying to be mean or rude," he said. "They are just trying to maintain the community. Most board members are good people and have a genuine interest in creating a good sense of community."

San Antonio Residents Fire Back At Homeowners Association and Builder

2009-01-08T07:33:00.003-06:00

A group of residents of the West Oaks Estates subdivision in San Antonio, Texas are fighting back against what they believe is an unmeritorious attack by their homeowners association, and the builder/developer who controls the HOA. In a counter-suit filed in Bexar County District Court in San Antonio, Texas, the residents have accused the West Oak Estates HOA, Inc., and McMillin Development of breach of contract, real estate fruad, violations of the covenants, and conversion.

The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.

In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.

The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.

There is currently no trial date in the case.

Fines, lawyer fees lead to HOA power battles -- WFAA TV in Dallas

2009-01-07T22:16:00.002-06:00

PLANO - Solar Lights, basketball hoops and shingles made of aluminum have all added up to fines, and in some cases liens, after some homeowners associations defined them as violations of their rules.

In Texas, HOAs possess the ultimate weapon, the ability to take one's home. However, some say that's too much control.

For more than 59 million Americans in 300,000 communities, HOAs regulate everything from the color of their homes to when they can leave their garage doors open.

"You can't win," said Sandy Ramirez, a Frisco homeowner. "HOAs will always win."
Mrs. Ramirez shot home video while a giant crane slowly lifted a luxury playhouse from her backyard. The Ramirez family paid $15,000 at a charity auction for the 6,000-pound, ten-feet-tall playhouse. Twenty-four hours after it was delivered, the Heritage Lakes Homeowners Association sent the family a threatening letter that demanded the playhouse be gone in 30 days or the Ramirez family would be fined $100 a day.

"Can you imagine trying to explain to an eight-month-old and a six-year-old that one day they're playing and enjoying their playhouse and the next day their playhouse is gone?" Mrs. Ramirez said. The family unsuccessfully appealed to the HOA. In addition to the denial, they were also billed for their appeal. "They charged me for the lawyer," Mrs. Ramirez said. "They put it on my bill - their use of the lawyer and the mediator."

The Ramirez family aren't the only North Texans who have battled with their neighborhood HOAs.

While green may not suit everyone's taste, Thieu Nguyen said it was his family's color of choice for cultural and sentimental reasons. "Green is the most natural color," he said. "Green, grass is green. Trees are green. It's the most natural color."

After a fence at his Plano home was painted green, the neighborhood's HOA quickly sent his family a letter asking them to repaint. The HOA only allows earth colors or stains. However, Nguyen said he thought green was an earth color and refused to repaint. "If I don't fight, then no one will," he said. "So, I have to fight even though I'm in a wheelchair and I struggle a lot to fight with them."

The neighborhood battle over Nguyen's fence started six years ago. The HOA sued him, levying fines and charging attorney fees that now total $1,800. The association is threatening to place a lien on Nyugen's house. The Vietnamese immigrant said the HOA's tactics remind him of his former homeland. "That's just like a communist country," he said. "They won't threaten you or anything. One day they just come in your house and kick you out."

Dallas based SBB Management oversees more than 150 North Texas HOAs. While the company's owner, Fred Shapiro, said HOAs are not perfect, he said they do serve an important purpose. He said their rules, restrictions and covenants are designed to, above all else, maintain property values.

"No one really wants to be heavy-handed, but sometimes people draw a line in the sand and it just doesn't work out that everyone's happy," he said.

Shapiro said while there are problems with HOAs, the vast majority work well and solve most of their problems with homeowners through boards, committees and hearings without fines, liens or court battles. "The developers wouldn't build them if the homeowners didn't want them," he said.

Thirteen years ago, Texas lawmakers created property code 204, which allows HOAs to be forced on homeowners without their consent, even if they have lived in their homes for decades. It also allows associations to pass rules that bind homeowners.

"Judges don't always make the right decisions," said Dr. Robert Bland, University of North Texas public administration professor. "Juries don't always make the right decisions, but that's our imperfect process of governing ourselves." Bland said with the authority given to HOAs in Texas, abuse of power can happen. But he also said some homeowners can be part of the problem when they do not know what restrictions may exist against their property. "An HOA becomes powerful or exercises undue power as a result of citizens becoming somewhat lax," he said.

Organizations pushing for HOA reform are fighting to limit HOAs powers. They want to eliminate the threat of foreclosure and restore homeowner control of their own property. "You have freedom of speech, freedom of expression and the HOA has violated that," he said.

Texas law allows HOAs to foreclose on homes only when fees are unpaid, which reportedly seldom happens.

By STEVE STOLER / WFAA-TV

New York Attorney General's Open Letter About Homeowners Associations -- Though Not Controlling In Texas, Interesting Nonetheless

2009-01-07T22:05:00.005-06:00

HOW TO HANDLE PROBLEMS WITH YOUR HOMEOWNERS ASSOCIATION

Members of homeowners associations who are unhappy with how their association is acting (or not acting) often do not know what they can do. This paper is designed to tell such homeowners about some of their rights. In most cases there is no government agency that can help unhappy owners who are having problems with their homeowners association (HOA). The Attorney General's office regulates only the offer and sale of real estate securities (which includes interests in HOAs). It generally does not become involved in owners’ problems with boards of directors after the sponsor is no longer in control of the board. However, this office may be able to help you if the sponsor of the HOA is not keeping the commitments which it
made in the offering plan.

As you may know, a homeowners association is an organization established to govern a private community. Typically it owns and manages some common property for owners of private houses or condominium units. By buying a lot and/or home, an owner automatically becomes a member of the HOA of which it is a part. Before offering to sell memberships, a sponsor must file an offering plan with the Attorney General if sales of individual homes, lots or condo units are involved, unless it is exempted by law or regulation.

Most HOAs are corporations established under the Not-for-Profit Corporation
Law. An HOA is similar to other corporations -- it is governed by a board of directors elected by the members and a set of rules called by-laws. Books and records of financial transactions must be kept, taxes paid, and certain services provided to members. Usually the board has an annual budget prepared to estimate expenses, and then assesses each member a share of the costs.

HOAs vary greatly in the services which they provide. The developer establishes the scope of the association initially by setting out the services and expenses
in the association's budget. The declaration provides the means by which the association can enforce the members' obligations and the by-laws set forth the procedures for running the association. Generally, the developer controls the association at first and relinquishes control to the individual owners some years later.

The primary purpose of the association is to protect and preserve the value of the privately and commonly used property. In furtherance of that goal there may be
restrictions concerning pets; requirements as to fence height; or limitations on the number of cars allowed in the driveways. These rules often conflict with the desires of an individual owner but exist for the general good of the entire community. In addition, the association may have the responsibility to repair and maintain portions of the community, such as roads, roofs, and recreation facilities.
The individual owner in a homeowners association has the opportunity to become involved and participate in the on-going affairs of the community, and the
responsibility to assure that the association's actions conform to the by-laws and
declaration.

Typical Problems

Perhaps your HOA seems dormant -- you never receive notice of meetings, nor are you given financial statements which explain how the assessments you pay are being spent. Perhaps repairs are neglected and snow not removed as quickly as you
expect. Or a nuisance created by your neighbor is allowed to continue. Maybe one owner is allowed to build a deck and another is refused permission to do the same thing. These problems may arise while the association is still under the developer's
control. Be aware that the HOA is an independent body whose functions must not be
merged with the corporate functions of the developer. The developer creates and controls the association initially, but has a duty to protect the investment of the members and to respond to the needs of the association with a sense of fairness and good faith. From the time of the first closing with a member, the developer must abide by the terms of the offering plan, the by-laws of the association and the declaration in the same way that a later independent board must.

Get the Facts

The way to begin dealing with your problems with the board is to understand what rights you have. There are two kinds of research to do.

A. Check the documents for your HOA -- the declaration, certificate of incorporation, and by-laws. Copies of these document should be available from the board of directors or developer; a copy of the declaration and by-laws is in your offering plan.

These documents should include information on:
. what the HOA is responsible for
. how the declaration can be amended (including percentage required)
. how members of the board of directors are elected
. how members of the board can be removed
. the powers and duties of the board of directors
. how annual owner meetings are called
. how special meetings are called
. what remedies exist when a homeowner defaults on his or her obligations including maintenance charges.

B. Look at the Not-for-Profit Corporation Law, the New York State law which
governs the establishment of most homeowners associations. The decisions made by
courts in cases involving the law are the case law which interprets the statute.
The Not-for-Profit Corporation Law (NPCL) is published as volume 37 of McKinney's Consolidated Laws of New York Annotated ("McKinney's") which can be found in law libraries, many lawyers' offices, and in certain public libraries. Included in volume 37 are brief descriptions of case decisions. Important provisions of the NPCL and the sections in which they are found, include the following:

An HOA may have different classes of members. NPCL §601.

By-laws may be adopted, amended or repealed by the members with the appropriate vote, as provided in the by-laws. NPCL §602.

A meeting of the members is to be held annually. NPCL §603.

Members may call special meetings, as authorized in the certificate of
incorporation or by-laws, or if at least 10 percent of the members wish to do
so. NPCL §603.

Directors may be elected at a special meeting. NPCL §604.

Proxies (authorizing another member to vote for you) are permitted subject
to provision in the by laws or certificate of incorporation. NPCL §609.

Members may request that elections be supervised by an inspector. NPCL §610.
The right to vote may be limited by the certificate of incorporation or by-laws.
(For example, there may be no right to vote until the developer gives up
control.) NPCL §612.

Action may be taken on written consent of members without a meeting.
NPCL §614.

Members may demand to see the corporate books and records of accounts, minutes of meetings, and a list of members. NPCL §621.

A derivative action may be brought by five percent or more of the members of the corporation. NPCL §623.

Directors may be removed with or without cause, as determined by the certificate of incorporation and by-laws. NPCL §706.

Unless restricted by the certificate of incorporation or by-laws the board of
directors may take action without holding a meeting if all members of the
board consent in writing to the action. NPCL §708.

Certain actions by a director or officer constitute a conflict of interest, and
may be void or voidable if no disclosure was made. NPCL §715.

Directors and officers must act in good faith and with reasonable diligence,
care and skill. NPCL §717.

Directors and officers may be sued for misconduct. NPCL §720.

Resolving the Problem: First Approach

If the board of directors is not complying with its own certificate of incorporation, declaration or by-laws, you should point this out, in a tactful way, expressing the expectation that the matter will be corrected. Sometimes this is all that is needed to solve a problem. If a simple oral request to an officer of the board fails, you can write a letter. It should be factual, brief and not hostile. Keep copies of any letters that you send, and notes of telephone conversations (the date, time, who called whom, and the gist of the discussion) in case the matter is not quickly resolved. An attempt to influence the board is always more persuasive if it is presented by a significant number of members. If your problem is one that others are affected by, it is worth organizing the other members. If you do, and the attempt to change the situation is not successful, the organized group can always seek to elect new directors at the next annual meeting.

Retaining a Lawyer

If your efforts to resolve your problems with the board fail, you may want to
retain a private lawyer. The Attorney General's office cannot recommend private lawyers. However, a few points may be helpful.

. It is a good idea to select someone with experience in handling HOA problems. You
could begin looking for an attorney by talking with members in your or other HOAs and with attorneys in other specialty areas. If this fails, you may wish to contact a local Bar Association for referrals.

. Some lawyers will not charge for a single initial consultation or will charge only a minimal fee.

. Most lawyers will attempt to resolve any matter through negotiation before considering litigation, as litigation is costly and usually lengthy. Litigating against the board of an HOA, people with whom one lives, can also be very unpleasant.

In Conclusion

If serious problems arise, which the board is not addressing, such as a bank's
threatening to foreclose on a mortgage on the Association’s common property or a
developer's failing to pay common charges on unsold houses or lots, it is important to act swiftly. Often such problems can be resolved, relatively simply, if members organize and act right away. Remember that members of HOA boards are usually other owners who are serving without pay. They generally want to resolve problems and keep peace in the community.

Good luck!

Attorney General of the State of New York

As Foreclosures Skyrocket, So Might Homeowners Association Dues

2009-01-07T21:41:00.002-06:00

It's no secret that foreclosures have hit epidemic proportions nationwide, including in Texas and Bexar County. Like other Americans, many residents of San Antonio's gated and restricted neighborhoods have fallen victim to the harsh times and reality of a nationwide recession. Foreclosures are way up in San Antonio, and it is not uncommon to find several foreclosed/bank-owned homes in some of our City's larger communities. But these vacancies have bigger implications upon communities subject to homeowners associations and mandatory assessments -- financial implications!

Many HOA bylaws or restrictions do not require banks coming into ownership of properties to HOA dues -- even where the dues are mandatory for other owners of properties in a given neighborhood. Other times, banks simply ignore notices and decline to pay HOA assessments. The obvious results can be disasterous for a community association whose financial viability was determined based upon the assumption that all owners of all lots in a community would contribute to the HOA revenues. When a significant enough number of lots within a community don't pay their fair share, the burdens of maintaining the neighborhood fall upon fewer shoulders. In turn, the burden that each of the paying homeowners has to bear could rise dramatically. Think of it like the baby-boomers becoming eligible for medicare -- there was a point where there were far fewer contributers to the system than there were beneficiaries.

Most Homeowners Association By-Laws and restrictions and covenants authorize HOAs to make additional assessments to ensure that costs are covered. These assessments, by necessity, fall upon those individual homeowners who have not been foreclosed upon. Practically speaking, the foreclosure spike may force many HOAs to increase dues and assessments against their paying members. So, while some homeowners fall into foreclosure, or simply "walk away" from a home in which they maintain equity, it may not be rare for their former neighbors to get stuck with part of the price tag.

This problem is not unique to San Antonio, or Texas. See the following article that appeared in "Gazette.net," an on-line Maryland newspaper:

At the Hillcrest townhouse development off McCain Drive in Frederick, five homeowners association board members have each ‘‘adopted” a foreclosed home, taking responsibility for mowing lawns, tearing down satellite dishes and cleaning up trash.

The association has no money to hire help to deal with maintenance on the five foreclosed homes in the 80-townhouse community, according to Steve Stoyke, association board member. ‘‘The grass was waist high and that brings down everybody’s property values,” Stoyke said. ‘‘So we mow the lawns and cut down old trees. We clear it up the best that we can ... Some of the neighbors see us taking care of the abandoned homes and now they are taking better care of their homes. It’s worked out good.”

The loss of association dues from residents unable to pay their mortgages has created a financial hardship for some homeowners associations. Dues typically allow associations to pay for services such as trash collection, snow removal and swimming pool maintenance.

At the Clearbrook subdivision off Ballenger Creek Pike in Frederick County, Property Management People has added staff to deal with the mounting number of foreclosures. ‘‘We’re trying to get the association protected the best that we can,” said Ed Thomas, chief executive officer of Property Management People of Frederick. ‘‘The best we can do is to get a lien against the homeowner to protect the homeowner’s association interest. Past-due assessments means less money to run the association ... So many people [are] just walking away from their homes...”

It’s a scenario playing out throughout the country, as a result of the nation’s mortgage crisis. ‘‘It’s a nationwide problem,” said Thomas, who lectures to groups on the foreclosure crisis. ‘‘It’s not isolated to Central Maryland ...”

WHY PAY A LAWYER -- IN ARIZONA OR TEXAS?????

2009-01-04T11:01:00.009-06:00

This morning I arrived in Tempe, Arizona to watch my beloved Texas Longhorns play in a meaningless Fiesta Bowl game tomorrow. This after being robbed by the BCS, which chose OU to go to the National Title Game, despite the fact that Texas beat OU 45-35 on a neutral field this season. There is no justice in college football...but I digress.

As we pulled into the outskirts of Phoenix, we stopped at a parking lot to fix some items that had shifted during the IH 10 trek across 3 states. When we got out of the RV I was amazed to see a business in the parking lot entitled "Why Pay a Lawyer?" The exterior glass pane store front of the business offered a variety of legal services that one would assume clearly require an attorney. Among the "services offered" were "business transactions" and even "litigation."

As I expressed astonishment that a non-lawyer could perform such acts -- which clearly constitute the practice of law -- my friends were quick to point out that the business doesn't ask "why use a lawyer" but instead, why pay a lawyer? I wasn't nearly as amused as they were...

But my curiousity was piqued. How could this be legal in Arizona? Is the State Bar of Arizona that much more lax than the Texas Bar? Was law school a complete waste of time and money for Arizona lawyers? I had to find out...

After just a minute on Google, I found the truth. Arizona's "Why Buy a Lawyer?" enterprise is highly illegal, and the source of lots of problems for its owner, Richard S. Berry. According to a 2006 Order of the Supreme Court of Arizona, Mr. Berry is a former attorney who was disbarred in 1977 (yes 32 years ago). The Order proclaims that Mr. Berry -- operating by and through "Why Pay A Lawyer?" -- has violated his Order of Disbarment, and continues to engage in the practice of law illegally. Even though his storefronts remain, the terms of the Order have effectively shut the operation down. For that, I am happy.

As I have written about before, hiring a lawyer is not an option where important legal matters are concerned -- in Texas or elsewhere...even Arizona. So while Mr. Berry cannot "negotiate the legal rights and responsibilities of others" or "represent others in judicial, quasi-judicial or administrative proceedings," we licensed and regulated attorneys can.

And to answer Mr. Berry's question, you should hire a lawyer to advise and counsel you in matters which are foreign to you, but routine to an experienced lawyer. You should no more let a "non-lawyer" handle your important legal matters than you would let a "non-doctor" diagnose your illness or perform surgery. This is simply unthinkable. One of Mr. Berry's former clients found this out the hard way. Here is his story -- straight from the "Rip-Off Report":

We didn't save a dime; actually, we lost even more than our money. We have lost our property to foreclosure, and lost our Bankruptcy case in the end. Mr. Berry will not accept our phone calls and is always 'in with a client' when we stop by in person. We have since hired an attorney who is handling our case, and we found out that Mr. Berry has been advising us according to old laws, which explains why things went as they did. Our advice: Don't spend your money here; spend a bit more and get a competent attorney who can represent you. If we had done that in the first place, we wouldn't have suffered the losses that we did.

Trey Wilson is a licensed lawyer in San Antonio, Texas. He is offended by "do-it-yourslef" legal programs found on-line and elsewhere. He will sleep better tonight knowing that the Arizona State Bar has disposed of "Why Pay A Lawyer?"

TEXAS HOUSING BILLS DOMINATE 81st LEGISLATIVE SESSION -- PRE-FILED BILLS AIM TO SLOW TEXAS FORECLOSURES

2009-01-04T10:36:00.001-06:00

On the housing front, several bills have been filed to protect consumers during foreclosures and to make it easier for consumers to file complaints against builders. Most notable is a bill by Sen. Craig Estes, R-Wichita Falls, that would require foreclosure prevention consultants to list x all services and payments in writing. Dubbed the Foreclosure Rescue Fraud Prevention Act and endorsed by Texas Attorney General Greg Abbott, the bill would prohibit the consultant from getting paid by a third party without prior written disclosure to the homeowner and would not allow the consultant to buy a home from any client.

The most controversial clause may be a provision requiring a buyer to pay at least 82 percent of a property’s fair market value. State Rep. Dawnna Dukes, D-Austin, has filed a bill to require property owners to give renters notice within seven days of receiving notice of a pending foreclosure auction and to allow a tenant to stay in a property through the foreclosure sale. It also would require the foreclosing lender or other entity to give the defaulting property owner 60 days notice before the sale. And buyers of foreclosed properties must give tenants 30 days to move after a foreclosure purchase.

House Bill 311 tries to modify the Texas Residential Construction Commission by stating the commission may not charge fees to homeowners who request an inspection or file a complaint against a builder or remodeler. Currently, homeowners are exempted if they can show an “inability to pay.” The state’s Sunset Advisory Commission recently recommended the TRCC be abolished because of its inability to force builders to make repairs.

Rep. Roberto Alonzo, D-Dallas, is seeking housing relief for immigrants in the wake of efforts by a North Texas suburb to target immigrants. His bill prohibits a property owner from using immigration status as a condition of renting, or even asking if a person is an immigrant.

San Antonio Real Estate Not As Robust As We Thought -- Bexar County Commercial Foreclosures Soar

2008-12-31T07:35:00.002-06:00

By Creighton A. Welch - Express-News

The amount of commercial foreclosures in Bexar County spiked in 2008, with 56 percent more postings than in 2007.

To put that in perspective, residential foreclosures jumped 24 percent in 2008. Although only 557 — or 5 percent — of the 11,300 foreclosure listings for 2008 were commercial properties, in 2007 there were only 356 commercial filings, according to data from Foreclosure Listing Service, a company that tracks and reports foreclosure postings in North and Central Texas counties.

The rise in foreclosures signals a slowdown in the local commercial market, which boomed in recent years. Construction of new space has slowed, and vacancies have begun to rise.

Next year likely won't get much better for commercial real estate, either. “It's obviously a topic of conversation, and it's something we're all kind of looking at and concerned about,” said Kimberly Gatley, senior vice president and director of research with NAI REOC Partners, a San Antonio commercial real estate company. “The consensus is that we will see some foreclosure increase in 2009, but we don't expect an avalanche.”

Properties most susceptible to foreclosures are those that can't refinance, buildings that have lost a large tenant or new properties that have trouble finding tenants, said Ernest Brown, executive vice president and managing director of Grubb & Ellis Co. in San Antonio.

Though bad, the numbers don't mean the downfall of commercial real estate. “Thankfully, this does not mean that the commercial property market is in big trouble,” said George Roddy, president of Addison-based Foreclosure Listing Service. He said most of the postings involved smaller, older buildings often in less desirable locations.

By far the biggest increase in the amount of postings came in the undeveloped land sector, which increased 227 percent, from 26 in 2007 to 85 this year.

“With the tremendous level of real estate growth seen in the area over the last few years, developers and speculators naturally were in the acquisition mode,” Roddy said. “Today, however, it's very difficult to get approved for lending, especially for new development. So, although the 227 percent surprised me, I did expect to see a marginal gain.”

The numbers are even worse for land tracts larger than 501 acres and tracts between 21 and 50 acres, in which foreclosure postings increased 1,000 percent and 1,300 percent, respectively. Foreclosure filings dropped in just one type of land, Roddy said. Postings of smaller tracts of 2 to 5 acres dropped 33 percent.

The commercial foreclosure market is subject to a kind of domino effect. If consumers don't spend money, businesses can't pay landlords, who then can't pay off loans. If a company downsizes, it doesn't need its office space, and landlords are left with too much vacancy to pay debt.

“Depending on how long this recession lasts, it's going to start impacting the tenants first. And when the tenants start to default, the landlords are going to have to figure out what to do,” said Gatley, of NAI REOC Partners. “It is all dependent on their individual loan structures. I'm watching some of the smaller unanchored retail centers. Their ability to lease up has been quite a struggle.”

Retail foreclosure postings increased 55 percent, from 33 in 2007 to 51 this year, and that's an area that could continue to increase. “I expect to see more postings of retail centers and buildings over the next year due to the sagging economic conditions,” Roddy said.

The biggest group of foreclosure postings was “miscellaneous” buildings, which made up 62 percent of the commercial postings. The amount of postings increased 55 percent, from 222 in 2007 to 345 this year.

“Smaller companies and mom-and-pop retailers occupy much of this miscellaneous commercial space, and these businesses are among the first to feel the sting of today's changing economic climate,” Roddy said.

Office buildings, which made up just 5 percent of the foreclosure market, saw a 63 percent increase in postings, from 16 to 26. Apartments made up just 6 percent of all commercial postings, and the 33 postings this year were 27 percent more than in 2007. Industrial buildings were the only sector in which postings declined, dropping 48 percent from 33 in 2007 to 17 this year.

But the current environment doesn't yet compare with past real estate collapses. “It is significantly less than the late 1980s, no question,” said Brown, of Grubb & Ellis. “For the most part, in the 1980s it was a supply-side problem, but this time we didn't overbuild as much.”

When foreclosures rise, many owners try to unload their properties at discount prices. “We're not seeing any fire sales yet, which tells me that landlords are trying to weather the storm,” Gatley said.

Easements by Prescription -- What Are They and How Are They Created?

2008-12-29T10:45:00.002-06:00

An easement by prescription is an easement that arises from the continuous use of another's property without the landowner's consent. Prescription easements are created in a similar manner as title to land is acquired by adverse possession, and the requirements are similar.

The major differences between prescrptive easements an adverse possession is that adverse possession requires continuous possession of the property, while a prescriptive easement only requires continuous use. Also, unlike adverse possession, use of a prescroptive easement never matures into title to the property.

An easement by prescription rests on the claimant's adverse actions under a color of right. Mack v. Landry, 22 S.W.3d 524, 531 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Scott v.. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied)). “A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years.” See id. (citing Brooks v. Jones, 578 S .W.2d 669, 673 (Tex.1979)). “The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.” Id. (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, Courts consider “whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.” Id.

It has been said that 5 requirements or elements must be met to create a prescriptive easement, and the absence or failure of any one element is fatal. The elements are as follows:

1. use of the easement must begin and continue without the consent of the landowner.
2. use must be open, obvious and apparent
3. use must be exclusive
4. use must be in the same place or with indefinite lines; and
5. use must be continuous and un-interrupted for ten years.

If your property is landlocked by recent actions of a neighboring landowner, you may be entitled to judicial declaration that an easement by prescription exists. If faced with this situation, you should contact an experienced real estate attorney. Trey Wilson is an attorney in San Antonio, Texas, whose practice emphasizes real estate law, construction law, evictions, and water law. He may be reached at 210-223-4100 or www.sa-law.com

San Antonio HOA Sells Disabled Couple's Home

2008-12-29T07:10:00.003-06:00

From WOAI.com

Every day is a struggle for Dan and Elaine Lambert. Dan has a traumatic brain injury and is partially paralyzed. He was struck by a train while working for the railroad. Since the accident, he's had two strokes and four heart attacks. Elaine says she went for six or seven weeks with open sores on her legs. She suffers from a disease that causes painful sores and swelling in her legs and has bouts of severe depression.

With their belongings already packed after getting an eviction notice from the new owner, Dan and Elaine each take some of the blame. The couple says the HOA dues were simply not a priority as they dealt with getting through their illnesses. They say certified letters from the HOA's attorney went unopened or thrown out because they thought it was junk mail.

Still, they think the HOA has gone too far. "There's no way in hell this association should do this to retired people or disabled people," Dan told us.

Homeowners' association usually don't do sell homes of those who owe them money. Instead, if you don't pay your dues, the association slaps a lien on your house. That way you have to pay up before you can sell it.

Instead filing a lien and leaving it at that, the Heritage Hills HOA took the unusual step of foreclosing and selling the house. The Lambert's home sold at a public auction on the steps of the Bexar County Courthouse. The house valued at $156,000 sold for only $2,200. That is the amount the Lamberts owed after late fees, attorneys fees and interest were added.

Tom Newton is the HOA attorney who sold the Lambert's home. "I'm not kicking anybody out of their house," he explained to the Trouble Shooters. "What I'm doing is holding them to the obligation they accepted when they bought the property."

Trouble Shooter Brian Collister asked Newton, "[Do] you feel comfortable kicking a disabled family out of their home for a few hundred dollars in HOA fees?"

Newton replied, "I feel comfortable in taking those steps necessary to enforce my client's legal rights, and if that means that ultimately somebody may go through this foreclosure process, it's unfortunate, but it is a consequence of their own making." During all of this, no one with the HOA or its attorney ever picked up the phone and called or came to the Lambert's home. They never simply knocked on the door and tried to talk to them about why they were not paying their fees.

Collister asked Newton about this; "Don't you think if you're going to take their home away from them you should at least go talk to them face to face?"

"No, I don't," Newton answered, "I don't, and I'll tell you there are some people out there who have whatever sort of issues they have. They become violent when you approach them about their shortcomings or failure to abide by their obligations, and I think it is a dangerous situation."

The Lambert's say they're not dangerous or violent. They're just surprised that a homeowners association can go so far because they owe so little. The HOA says it sent the Lamberts certified letters during the three years they did not pay their dues, and they had plenty of opportunities to pay up and keep their house.

Wednesday, the Lamberts sit down with the HOA and the investment company that bought the house. They're going to try and come up with a way where the Lamberts can keep their home. We'll let you know what happens.

West Oaks Estates HOA and Builder File Suit Against Non-Member Residents Seeking to Compel Them to Join HOA

2008-12-29T06:35:00.007-06:00

On November 16, 2008, the West Oak Estates Homeowners Assocaition, Inc. ("HOA"), and McMillin Texas Development (a susidiary of McMillian Homes) filed at least 15 lawsuits in Bexar County District Court against families residing in Unit 2 of San Antonio's West Oak Estates subdivision. The suits, which are identical, were served upon the residents in the days immediately proceeding Thanksgiving -- putting a damper on the holiday spirits of may of the residents of the West Oak Estates subdivision. San Antonio attorney Trey Wilson has been retained to represent 12 of the families, and several others who were not sued, but who are similarly-situated to the Defendants. Wilson has represented homeowners associations and those individuals adverse to them in a variety of lawsuits.

The West Oak Estates HOA lawsuit arises from the fact that the Defendant households are not members of the homeowners association because they purchased their homes prior to the time that McMillin annexed Unit 2 into the Restrictive Covenants. That is, McMillin sold at least 19 homes in the subdivision BEFORE it recorded its Declaration of Covenants, Codes and Restrictions ("CCRs") with the Bexar County Clerk. "Because these homes were sold prior to the developer recording the CCRs (on May 26, 2006), these properties are not burdened by the CCRs, and my clients are neither bound by the CCRs or subject to mandatory membership in the HOA" said Wilson. "it is unfortuante that the HOA and builder have resorted to litigation, as these type of suits generally result in discord between neighbors and a loss of tranquility and goodwill among neighbors." In 2007 Wilson filed suit in Medina County, Texas against the developers of the Valentine Ranch subdivision on grounds that their property owners association was not formed or incorporated until after many of that development's residents purchased their properties and began payment of POA dues and assessments. The 2007 lawsuit was settled at mediation, and resulted in the issuance of Amended CCRs, a Supplemental Declaration, and several changes in the composition of the POA Board.

McMillin recognized its error as far back as July 2006, and began a campaign of letter writing and negotiations seeking to recruit the non-members to voluntarily join the West Oak Estates HOA. When these negotiations failed, it resorted to litigation, and filed suit seeking to have the Court declare that the non-members are subject to the CCRs and subject to mandatory HOA membership. Although the HOA is a named Plaintiff in the suit, the association remains under developer control, and 2of its 3 Board Directors are McMillin employees. The other Board member is a subdivision resident who was appointed by McMillin. The HOA has claimed in the lawsuit that it is a "beneficiary of the contract bewteen Defendants and McMillin."

Wilson maintains that, in addition to several defenses to the builder and HOA's lawsuit, the non-members maintain several affirmative claims against both the HOA and the builder arising from broken promises, breach of the CCRs, and illegal collection of dues and assessments from the non-members. "These claims will be addressed by way of the non-members' counterclaims against the Plaintiffs, and a third-party claim against the HOA's management company."

More to follow as the suit progresses...

Landlocked Property in Texas? An "Easement by Necessity" May Exist

2008-12-28T22:42:00.004-06:00

Have you bought or inherited real property in Texas, only to find that the property is landlocked, with no legal access to a roadway? Obviously such a finding can be devastating, as even the greatest parcel is virtually useless if it cannot be accessed by vehicle. This devastation quickly translates to financial havoc, as landlocked property is often worth a tiny fraction of the property's value with access. But, before you abandon all hope, you should consult with an experienced real estate lawyer to determine whether an "easement by necessity" or other right of access may be established through operation of various legal doctrines. You may be pleasantly surprised to find that Texas Courts frown upon landlocked property.

An easement is defined as “a right of use over the property of another.” Black's Law Dictionary 527 (7th ed.1999). Easements are common tools for both public and private parties, and touch each of our daily lives in less-than-exciting, but important ways. Utility service is brought to your home and workplace through use of easements, and many times government employees (including first responders such as Police, Fire and EMS) utilize easements in their public service. In fact, many cities and utility companies have an entire staff of employees dedicated to obtaining and managing easements. Thus, easements are an invisible but essential element of daily life in Texas.

Easements may be generally thought of as a grant of a "right to use" (or "license to use") certain property of another for a certain reason. Easements may be created in many ways, both consentual and involuntary, as well as express and implied. Further, easements are not absolute. “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In determining the scope of an easement, Courts "may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)).

Where landlocked property is concerned, Texas law governing "easements by necessity" are most often implicated (though there are other types of easements and dedications that should also be explored). This is because the landowner seeking an easement by necessity over a servient estate must show the necessity of that easement in accessing his property. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, writ denied); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984).
For an easement to be necessary, the property must be landlocked.

A party claiming an easement by necessity bears the burden of proving all the elements necessary to establish the easement. Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements are:

(1) unity of ownership prior to separation;

(2) access as a necessity and not a mere convenience; and,

(3) necessity existing at the time of the severance.

Koonce, 663 S.W.2d at 452 (citing Duff, 311 S.W.2d at 641).

Additionally, it should be noted that easements by necessity are temporary because their existence is dependent on the necessity that created them. Therefore, they terminate upon the cessation of the necessity.

Once the location of a way of necessity is established, its location may be changed only with the expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).

Many times individuals facing landlocked situations by trespassing on another's land to gain entry, or by obtaining a temporary access agreement from another landowner. Such practices are not fatal to proving an "easement by necessity" as “an easement by necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2006, pet. denied). However, the party seeking to establish an easement by necessity must prove he has no other legal access to his property. Id.

The party seeking to establish an easement by necessity also must prove that the necessity existed at the time the estates were severed. See Koonce, 663 S.W.2d at 452(an element necessary to establish an implied easement by necessity is that the necessity must exist at the time of severance of the two estates); Perkins v. Krauter Family P'ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.App.-San Antonio Sept.22, 2004, no pet.) (mem. op., not designated for publication) (holding same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied) (holding same as to an easement by implication).

The means and evidence necssary to prove each of the elements of easement by necessity are often complex, and hyper-technical. Texas landowners facing landlocked property situations are urged to immediately seek the counsel of an experienced real estate attorney. Such an attorney can advise upon the facts of your particular circumstance, assist you in exploring claims against the Seller of the landlocked property, as well as any title companies or other professionals associated with your acquisition of the landlocked property.

Trey wilson is an attorney and real estate agent in San Antonio, Texas. In September 2008 Scene in SA Magazine named him one of San Antonio's Best Real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com

San Antonio Homeowners Association Threatens Foreclosure of Military Couple Stationed Overseas from WOAI.com

2008-12-28T22:26:00.003-06:00

A San Antonio couple, serving in the military overseas, almost loses their home. Not because they failed to make their mortgage payments, but because they were behind on their homeowners association fees. This military couple was fighting a losing battle, so they asked News 4 Trouble Shooter Jaie Avila for help.

David and Melody Gates admit they fell behind on their homeowners association fees when Melody got sick, but they say when they tried to pay what they owed, the association and its attorney kept sending their checks back and piling on more fees. The couple is stationed at an air force base in Germany.

The Gates say since late last year, they have sent three separate checks to the Westover Crossing Homeowners Association to pay off all the dues they owe for their home. But each time, the checks were returned, because by the time they arrived in the mail, more late fees, and attorneys fees had been added to the total. The attorney for the association refused to accept partial payment.

"Every time they mail it back to me, they tell me I owe them more money," says Melody Gates. "They tell me that I owe them late fees and I also, on top of that, I owe them attorney fees. And I don't understand why a company, knowing that we're so far away, is being so unjust to us."

After six months of this, the Gates' bill grew from $1,100 to more than $1,800.
The homeowners association filed a lien against their home and was threatening foreclosure. So the desperate couple e-mailed the Trouble Shooters.

"I reached out to you, because I don't know what else to do," says Gates. "We have tried very hard to make this bill paid in full."

The Trouble Shooters contacted Spectrum Management, which runs the Westover Crossing Homeowners Association, and its attorney, Tom Newton, Jr., the man who has been sending the Gates' all those intimidating letters. Newton wouldn't comment, but this isn't the first time the Trouble Shooters have come across attorney, Tom Newton.

Last year, Newton, who was working for another homeowners association, foreclosed on an elderly disabled couple, Dan and Elaine lambert, because they hadn't paid $380 in HOA fees. At the time he said he felt justified in foreclosing on struggling homeowners who are only a few hundred dollars behind on their HOA dues.

"I feel comfortable in taking those steps necessary to enforce my client's legal rights," said Newton at the time. "And if that means that ultimately somebody may go through this foreclosure process, it is unfortunate. But it is a consequence of their own making."

Although, he wouldn't talk to us, a few days after we contacted Newton, he and the Westover Crossing Homeowners Association agreed to stop tacking on fees and settled the dispute with the gates for $1,300. Almost $600 less than they had been demanding.

If you fall behind on your HOA fees, they can legally do the same thing to you. Be sure to read your deed restrictions which should explain what kind of notice they have to give you before trying to foreclose. And get them to agree to a re-payment plan in writing, to avoid unexpected fees.

If you feel that you are being harassed or treated unfairly by a Homeowners Association (HOA), contact San Antonio attorney Trey Wilson. Mr. Wilson is an experienced real estate lawyer who routinely represents both individuals under seige by their HOAs, and HOAs with claims agaisnt developers/builders. Trey Wilson was named by Scene in SA Magazine as one of San Antonio's Best real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com

11 Face Justice in Mortgage Fraud Scheme -- San Antonio Real Estate Investment Fraud

2008-12-28T20:34:00.004-06:00

On a one-block street in Northwest San Antonio, five properties all fell into foreclosure in 2003. When federal investigators began poking around, they tied the properties on Meadow Field near Grissom Road to an Austin-based house-flipping ring.

Eleven members of that 16-person ring -- which includes three real estate agents, an attorney, a mortgage broker and a former Wells Fargo bank officer -- are set to be sentenced today in U.S. District Court in Austin after being found guilty of wire fraud, money laundering and falsifying information on loan documents as part of this scam that hit Austin and that San Antonio neighborhood.

The Austin ring is part of a swelling wave of mortgage fraud that isn't expected to crest until late next year. Texas is among the top 10 states for mortgage abuses, and San Antonio is involved in three such scams so far this year, the Austin case and two San Antonio-based rings under investigation by the Federal Bureau of Investigation. The San Antonio rings used more than 50 people to inflate prices in Stone Oak, Spring Branch and Dallas.

FBI special agents investigating the cases have said that arrests would happen soon this summer. “Typically what happens is incidents are not identified until months after the loans were originated, so many (federal) agencies are just closing cases from 2000 and 2001,” said Tom Chmielewski, vice president of products and strategy at ChoicePoint which owns the Mortgage Asset Research Institute. “I expect the fraud to be at elevated levels for the next couple of years.”

The increased fraud activity has its roots in the housing boom and the popularity of no-documentation loans -- loans where information entered about the background and finances of buyers were not verified. “A lot of it popped up in the last four to five years particularly with no-doc, low-doc loans because nobody was verifying anything,” said Jim Gaines, a research economist at the Real Estate Center at Texas A&M University.

Nationwide, financial institutions reported 46,717 cases of suspicious activity in mortgage lending in fiscal 2007, according to the FBI. That's a 31 percent increase from fiscal 2006, when lenders began to loosen lending guidelines, and a 574 percent increase since fiscal 2003, when the housing boom started to take off. Most of the cases are in Texas, California, Colorado, Florida, Georgia, Illinois, Michigan, Minnesota, New York and Ohio, according to the FBI's 2008 mortgage fraud report. One study by mortgage insurer Radian Group found that 10.5 percent of all mortgages it had insured in Texas in 2007 showed signs of “misrepresentation,” according to Rick Gillespie, Radian senior vice president.

The cases typically feature an appraiser who agrees to provide inflated appraisals for a kickback, and “straw buyers” -- people who rent out their personal information to another person for the purchase of a house with the understanding that home will be sold in a quick flip to another buyer after a few months.

According to the indictment in the case of the Austin-based fraud ring, Austin resident Cornelius Robinson created a company named Billionaires Boys Club Investments Inc. (BBC) and then recruited his wife and former real estate agent Silvia Seelig, Austin lawyer George H. Watson, former Wells Fargo personal banker Doris Ann Hill, and Robinson's uncle and friends to help buy 25 properties using fraudulent practices.

The team falsified addresses and telephone numbers for straw buyers, as well as rental histories, employment histories and bank deposits, according to the indictment. In San Antonio, BBC bought five fourplexes on Meadow Field on Aug. 14, 2001, for $100,000 each and then sold them during the same month to an “unindicted co-conspirator” for $157,000 each. The second buyer sold four of the properties about eight months later to another “unindicted co-conspirator” for $167,000. At some point, the mortgage payments no longer were being paid and lenders foreclosed on all five properties in 2003, according to the court record.

When so many foreclosures happen close together, it can hurt home prices.

Within San Antonio's Great Northwest area, where the Meadow Field properties are located, the median price dropped 2.4 percent in 2004, the year after the five properties were foreclosed, according to the San Antonio Board of Realtors.

In January 2008, 16 people were indicted for having participated in BBC's mortgage scams. Seelig, Watson, Hill and eight other defendants pleaded guilty to charges related to wire fraud, money laundering and making false statements on loans and will be sentenced today.

Robinson went to trial and was convicted of five counts of wire fraud, seven counts of money laundering and nine counts of making false statements on loans, according to the U.S. Attorney's Office. His case is set for sentencing on June 20.

In the two ongoing local investigations, FBI special agent David Rawlings who is leading the investigation, says 54 people committed mortgage fraud to buy 112 houses in Stone Oak, Spring Branch and Dallas.

Because the investigation is ongoing, Rawlings would not give many details about the cases. But he did say that in some instances, the straw buyers bought and flipped homes with the help of two San Antonio-based mortgage brokers. In other cases, a buyer purchased a new home at a discount, but got the builder to falsify the mortgage documents by saying the house was sold for a higher price than it was. After the inflated loan closed, the buyer paid the builder a kickback.

Rawlings explained that in San Antonio, several of the cases involved new construction. San Antonio overbuilt homes in 2006 and 2007, and for the past two years, builders have started fewer houses in an effort to sell off their existing inventory. Such scenarios can create a climate ripe for fraud, Rawlings said. “Where there's newer construction, you have a lot of desperate sellers and builders,” Rawlings said. “The losses have been up to $400,000 and $500,000 on some million-dollar homes.”

Such fraud techniques are not exclusive to Texas. One of the largest publicized cases this year happened in Chicago, where lenders lost an estimated $25 million on more than 150 properties after loan officers, processors, a CPA, a real estate agent and developers falsified employment, assets and rental history for straw buyers.

Real estate and foreclosure experts say the frenzy of the housing boom created the atmosphere where such widespread fraud could flourish. The fraud mushroomed as lenders faced rising pressure to increase sales. “I've talked with loan officers who routinely said they'd deny a loan and their bosses would come back and say, ‘Approve it,'” said Rick Sharga, vice president of marketing at RealtyTrac Inc. that monitors foreclosure activity. “When the loan officer said, ‘The loan doesn't fit our lending standards,' (then) the supervisor would say, ‘That's OK. Somebody will buy it.'”

From the SA Express News.

San Antonio Attorney Trey Wilson handles real estate fraud lawsuits, including suits involving real estate investors. As reported by Scene in SA Magazine, Wilson was recently voted by his peers as one of San Antonio's Best Real Estate Litigation Attorneys. He handles a variety of real estate claims and lawsuits, including fraud claims related to residential and commercial properties. As a licensed real estate Agent, Trey Wilson is a San Antonio lawyer who is uniquely attuned to real estate transactions and the duties of the parties to such transactions. He routinely represents Out-of-State investors who have invested in texas real estate. Trey Wilson is the principal of R L Wilson, P.C. Law Firm. he may be reached at 210-223-4100 or www.sa-law.com

AUSTIN AREA MORTGAGE FRAUD SCHEME NETS GUILTY VERDICTS AND PLEAS BY REAL ESTATE PROFESSIONALS

2008-12-28T20:25:00.004-06:00

Last March, a federal jury returned guilty verdicts in United States District Court in Austin, Texas against five current and former Austin residents, including ringleader Cornelius Robinson, for their roles in a multi-million dollar mortgage fraud scheme. The following is taken from a DOJ press release, and details a sordid scheme involving real estate agents and even a real estate lawyer.

Following a nine day trial, the jury convicted:

• Cornelius Robinson, age 47, of Austin, Texas, who was the leader and organizer of the fraud scheme. Robinson was convicted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, five substantive counts of wire fraud, 9 substantive counts of false statements related to a loan, one count of aiding and abetting the receipt of commissions or gifts from loans by a bank employee, conspiracy to commit money laundering and 7 substantive counts of money laundering. Robinson was acquitted of one false statement charge;

• Michael Breon, age 39, formerly of Austin and a current resident of McKinney, Texas, and a straw purchaser. Breon was convicted of conspiracy to make false statements related to a loan, one count of wire fraud and one count of conspiracy to commit money laundering. Breon, a licensed loan officer and mortgage broker, was employed by several different loan origination and mortgage companies during the conspiracy. Breon was acquitted of conspiracy to commit wire fraud;

• Sindu Sukumaran, age 36, wife of Michael Breon and a straw purchaser. Sukumaran was convicted of wire fraud. Sukumaran was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and conspiracy to commit money laundering;

• Marlon Nathan Torres, age 45, of Hutto, Texas, a licensed real estate agent and buyer and seller of real estate in the Austin area. Torres was convicted of one count each of conspiracy to commit money laundering and money laundering. Torres was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and one substantive count of false statement related to a loan;

• Jeffrey Andre Wilkins, age 46, of Austin, a cousin of Cornelius Robinson and a straw purchaser. Wilkins was convicted of one count each of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, false statement related to a loan, conspiracy to commit money laundering and money laundering.

United States District Judge Sam Sparks has scheduled sentencing for June 20, 2008.

The five defendants which went to trial were the last of sixteen defendants who were indicted on January 8, 2008 by the Federal Grand Jury in Austin. Eleven co-defendants pleaded guilty to related charges prior to trial. These co-defendants are set for sentencing on June 6, 2008. The co-defendants include:

• Silvia Seelig, age 45, of Austin, and wife of Cornelius Robinson who during the conspiracy, was a licensed real estate agent and a straw buyer;

• George H. Watson, age 55, of Austin, a licensed attorney who specializes in real estate transactions. Watson served as the closing attorney on most of the real estate transactions described in the Indictment;

• James Douglas Atwood, age 51, of Austin, Cornelius Robinson’s uncle and a straw buyer;

• Doris Ann Hill, age 40, of Austin, a personal banker employed at Wells Fargo Bank. For a fee, Hill agreed to provide a false verification of deposit to loan underwriters in relation to three real estate transactions involving defendant Snead;

• Julius Meyers Lofton, a 45-year-old licensed real estate agent living in Austin and a straw buyer;

• Roy Rivers, age 52, of Austin, and a straw buyer;

• Danielle Guice Rosas, age 40, of Austin, and a straw buyer;

• Stanley Ma, age 27, of Honolulu, Hawaii and a straw buyer;

• Leonard Brown, age 38, of Houston, Texas, who provided a false verification of employment in association with Onyx Consulting and defendant Ma;

• Russell Snead, age 43, of the Seattle, Washington area and a straw buyer; and,

• Leroy Williams, age 46, of Austin and a straw buyer.

From September 1999 to present, the defendants participated in a scheme to defraud mortgage lenders, including federally insured financial institutions, with regard to loans acquired to purchase 25 properties in the Austin and San Antonio area. The scheme centered upon the use of real estate “flips.” That is, the defendants purchased property at one price and would immediately sell, or “flip,” the property to a “straw buyer” at a higher price. In doing so, the mortgage lenders were deceived as to the true nature of the transaction and the financial status of the “straw buyer.” The straw buyers did not make the subsequent monthly mortgage payments and all of the loans have gone into default. All of loans have been either foreclosed upon or are the subject of current foreclosure proceedings.

This case was investigated by the Federal Bureau of Investigation and the Internal Revenue Service - Criminal Investigations.

Real Estate Agent Liability in Texas -- More Agents Means More Potential for Malpractice and Liability

2008-12-28T19:00:00.010-06:00

Like most other industries, Real Estate in Texas is down. However, it is almost universally agreed that our real estate markets are healthier than those of most other states. In fact, a recent survey by Forbes of the 40 largest U.S. metropolitan areas to determine the best cities for purchasing a home, placed four Texas cities in the top six spots. Houston and Austin ranked first and second, while Dallas and San Antonio placed fifth and sixth.

With the "hot" market that Texas has enjoyed for years, the number of licensed agents has burgeoned. Following the real estate bust of the late 1980's and the aftershocks felt through most of the 90's, the number of active Texas real estate licensees dropped nearly in half from 1986 to 1997. Then came the extended real estate boom, which has only recently began to subside. Since 1997, the number of Texas real estate licensees has been growing. Today, there are an estimated 140,000 Texas licensees.

Unfortunately, not all Texas real estate agents (or practitioners of any industry for that matter) are ethical or competent. As with any commission-based business, there exists an inherent pressure on real estate agents to close sales of real property -- even when those sales benefit only the agent. Also, because of their close proximity to transactions and access to sensitive information, some real estate agents are tempted to engage in self-dealing. Finally, agents are human, and they sometimes make innocent mistakes. Even in those situations -- where rel estate agent negligence or incompetence (as opposed to malfeasance) results in harm, loss or injury to the agent's client or to the other party in a real estate transaction can be actionable.

The Texas Real Estate License Act, located at Chapter 1101 of the Texas Occupations Code, governs the issuance of real estate licenses in Texas, and prescribes standards for the conduct of Texas real estate brokers and agents. Two sections, in particular, apply to most situations by which people are injured by the acts or omissions of real estate professionals. They are as follows:

Sec. 1101.803. GENERAL LIABILITY OF BROKER. A licensed broker is liable to the commission, the public, and the broker's clients for any conduct engaged in under this chapter by the broker or by a salesperson associated with or acting for the broker.

Section 1101.803 is generally understood to create strict liability of a broker for thr the acts or omissions of real estate agents (salepersons) associated with the broker. This is significant because in many situations, the real estate client (buyer or seller) develops a relationship solely with a salesperson. Indeed, in many instances, the client never meets or speaks with broker, and has all contact with the real estate firm through the salesperson. Notwithstanding this fact, or the fact that he or she may be a total stranger to the client, the broker is liable to the client for any errors, misdeeds or failures of the salesperson. The practical significance of Section 1101.803 is that it provides an aggrieved party the right to pursue and potentially recover from both the guilty agent, and his or her broker. In some instances, the agent and broker may even have separate errors and omissions/professional liability insurance policies under which recovery may be sought. It is extremely important that an individual claiming professional negligence resulting from a real estate agent's acts also makes a timely claim against the broker. Even some experienced lawyers are unaware of this provision, and resultantly, many legitimate claims against brokers have never been pursued.

The second oft-implicated section of the Texas Real Estate License Act is Section 1101.805 relating to representations (or the lack thereof) made by agents and their clients. It provides:

Sec. 1101.805. LIABILITY FOR MISREPRESENTATION OR CONCEALMENT. (a) In this section, "party" has the meaning assigned by Section 1101.551.

(b) This section prevails over any other law, including common law.

(c) This section does not diminish a broker's responsibility for the acts or omissions of a salesperson associated with or acting for the broker.

(d) A party is not liable for a misrepresentation or a concealment of a material fact made by a license holder in a real estate transaction unless the party:

(1) knew of the falsity of the misrepresentation or concealment; and

(2) failed to disclose the party's knowledge of the falsity of the misrepresentation or concealment.

(e) A license holder is not liable for a misrepresentation or a concealment of a material fact made by a party to a real estate transaction unless the license holder:

(1) knew of the falsity of the misrepresentation or concealment; and

(2) failed to disclose the license holder's knowledge of the falsity of the misrepresentation or concealment.

(f) A party or a license holder is not liable for a misrepresentation or a concealment of a material fact made by a subagent in a real estate transaction unless the party or license holder:

(1) knew of the falsity of the misrepresentation or concealment; and

(2) failed to disclose the party's or license holder's knowledge of the falsity of the misrepresentation or concealment.

In plain English, Section 1101.805 stands for a pretty simple proposition: real estate professionals are not responsible for misstatements or failures in disclosure of their clients unless the professional is aware of the misstaement/concealment and doies nothing about it. The proposition applies in reverse too -- innocent clients are not liable for misstatements or failures in disclosure of their agents.

Horror stories about real estate agents abound -- and not just in Texas. If you have been aggrieved by a Texas real estate broker or agent, you should consult with experienced legal counsel familiar with the standards and duties of Texas real estate professionals, and the complexities of real estate transactions. Trey Wilson was named by Scene in SA Magaizine as one of San Antonio's Best Real Estate Litigation Attorneys. In addition to being a real estate and construction lawyer, Trey Wilson is a licensed real estate agent. He may be reached at 210-223-4100 or www.sa-law.com

Real Estate Named 3rd Largest Contributer to Texas Economy

2008-12-28T18:49:00.001-06:00

Real estate is the third most important private industry in Texas, accounting for nearly 8% of Texas’ gross domestic product in 2006, behind manufacturing (13.4%) and mining (9.8%). “The GDP is the broadest measure of economic importance when looking at the overall economy,” says Ali Anari, Ph.D., research economist with the Real Estate Center at Texas A&M University. Anari analyzed a variety of economic factors in his recently released report, Texas Real Estate Industry Review, 2008. Among the findings:

Every $1 million of revenue in the Texas real estate industry generates 5.16 jobs within the industry and five jobs in other industries.

$1 million of sales tax generated in the real estate industry leads to $1.26 million of sales tax overall in the Texas economy.

Taxes paid by the real estate industry accounted for 18.7% of total Texas business taxes in 2007.

Source: Real Estate Center at Texas A&M University

Budget for HOA Success

2008-12-19T19:12:00.001-06:00

by Richard Thompson of Realty Times

Every homeowner association needs a well crafted annual budget to calculate the fees to be paid by the members. For most HOAs which have a fiscal year starting in January, the fall prior to that is budget review time. A review and revision should happen each year without exception because costs change every year. Failure to revise (read "increase") each year will put the HOA deeper and deeper in the hole. There are number of areas that every budget review should include:

Historical Operating Expenses. Examine the most recent 12 months' expenses to determine your base for each expense line item. Scrutinize line items that are larger than normal to determine if there was an anomaly that is not likely to repeat the next year. If so, don't include it.

Anticipated Increases. Utility costs typically increase every year. Contract services also are subject to increase. Call your utility and service providers and ask them if there will be an increase in the coming year.

Contingency. HOAs often experience unforeseen expenses and/or revenue shortfall. Add 5-10% of the total budget to cover this.

Reserve Funds. Every HOA should set aside funds for future common element repairs and replacements. Both Fannie Mae and Freddie Mac (the entities that underwrite most home mortgages) require at least 10% of the condominium annual revenues be dedicated to reserves. For HOAs with little common area or few common elements, 10% may suffice but condominiums often need 25% or more of the annual budget dedicated to this purpose. Only a reserve study done by a qualified professional reveals the answer. For a list of professionals that hold a PRA (Professional Reserve Analyst) credential, the highest available in the industry, go to www.apra-usa.com Some boards fail to raise HOA fees each year because:

1. Some members are on fixed incomes. While this is true in virtually every form of housing, the board needs to remember that every member's property is affected negatively if repairs and maintenance are deferred due to lack of money. The truth is that some homeowners may have reached a point where downsizing makes sense. And unless the board gets the other members' consent to subsidize the members who don't have enough money, the response to those that can't pay should be "we sympathize but the budget needs to be adequate to maintain the common elements." The board that keeps the budget artificially low for this reason bears personally responsibility for the consequences.

2. They don't want to look like bad guys. The board is elected to run the HOA like a business. It takes money to run a business properly. While no one wants to pay more than it costs, few members are naive enough to think costs don't go up each year. The board that ignores reality is personally responsible for the results.

3. They disagree with the reserve study provider's recommendations. While it's possible that a reserve study may be flawed, few board members are qualified to perform one so the board needs to be careful in dismissing recommendations that call for more money to be put into reserves. The average condominium should be setting aside 25-35% of the annual budget to address reserve needs (and more if the funding level is low). If less than that is being reserved, it increases the likelihood of a special assessment which inevitably falls on members that shouldn't have to pay it and on others that are financially unable to pay it. Reserves are best funded monthly, in the case of condos, or quarterly, semiannually or annually in the case of homeowner associations which have modest reserve needs.

4. HOA fees need to match neighboring HOAs. The financial fingerprint of each HOA is unique...no two are alike. The budget needs to be based on the specific services required to maintain the operation and reserves, not what the Joneses are doing. The Joneses may be headed for disaster. Even similar HOAs can have very different financial requirements. Some have higher insurance premiums due to prior claims. Some have funded their reserves appropriately, some are catching up, and some haven't even started yet. Some take care of repairs on a pro-active basis and some have deferred maintenance. Some have earthquake insurance, cable TV and internet access and some don't. In other words, the "HOA fee" doesn't include the same costs in all complexes so comparing the bottom line without knowing what created it is meaningless. Your HOA fees should be based on specific needs, not the neighbor's.

What about cost cutting? Most HOA expenses are not discretionary but there are some areas with great potential for savings, such as:

Insurance. Increasing the insurance deductible lowers the premium. However, if this is done, there should be an Insurance Deductible reserve spread over, say, three years to cover at least one claim. If no claims are filed during the three years, the money is saved.

Landscaping Renovation. Older HOAs often have vast turf areas which are very expensive to maintain. Replacing turf areas with planting beds filled with drought resistant plants and bushes can dramatically reduce costs.

Lighting. Compact fluorescent bulbs use 70% less energy and last years longer than traditional incandescent bulbs. They usually work with existing fixtures and the brighter light they cast enhances security.

Heating & Air Conditioning. If the HOA provides central heating and air conditioning, it is often worth installing new energy efficient equipment. Your utility company usually can provide you a cost/benefit analysis. The older your existing equipment, the faster the payback.

Hot Water Heating System. The same cost/benefit approach applies to central hot water systems. Investing in new equipment can often pay back in only a few years with the energy costs savings.

Pool Solar Heating Equipment. Pool heating costs can easily be one of an HOA's biggest expenses. Solar hot water heating equipment can substantially reduce energy costs and pay for itself in only a few years.

Add Natural Lighting. Common areas can often benefit from devices like Solatube www.solatube.com which capture, concentrate and focus sunlight into dark interiors, reducing the need for electric lighting.

As the Green Revolution expands it's footprint, there are more sustainable energy saving alternatives to consider. Some are low tech and some are higher than high but all are designed to stretch your dollars. For more energy saving and cost cutting information, see the US Department of Energy website

In the final analysis, the board is charged with running business in the best interest of all members. Sometimes that means ruffling a few feathers. But the board has the fiduciary duty to set the HOA fees at a level that is adequate to cover realistic operating and reserve expenses. Budgeting for success means planning, leadership and execution.

Restrictive Covenants Are Treated as Contracts Under Texas Law

2008-12-19T08:14:00.003-06:00

Read those CCRs before you sign them! Better yet, have an experienced attorney do so.

The Texas Property Code defines a restrictive covenant as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive or administrative.” TEX. PROP.CODE ANN. § 202.001(4). Black's Law Dictionary defines restrictive covenant as a “private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” BLACK'S LAW DICTIONARY 393 (8th Edition 2004). The Restatement (Third) of Property states that a restrictive covenant is “a negative covenant that limits permissible uses of land.” RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.3(3) (2000). Clearly, “Declarations of Covenants, Conditions, and Restrictions" or CCRs fall squarely within these definitions, and constitute restrictive covenants.

Texas Courts have long held that restrictive covenant are interpreted according to the rules that govern contract construction. See e.g., Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet); Marcus v. Whispering Springs Homeowners Ass'n, Inc., 153 S.W.3d 702 (Tex.App.-Dallas, 2005); VICC Homeowners' Ass'n, Inc. v. Los Campeones, Inc., 143 S.W.3d 832 (Tex.App.-Corpus Christi, 2004). Dyegard Land Partnership v. Hoover, 39 S.W.3d 300 (Tex.App.-Fort Worth 2001, no pet.); Scoville v. SpringPark Homeowner's Ass'n, 784 S.W.2d 498, 502 (Tex.App.-Dallas 1990, writ denied). Further, Courts strictly construe covenants “against the party seeking to enforce it in favor of the free and unrestricted use of the premises.” Munson v. Milton, 948 S.W.2d 813, 816 (Tex.App.-San Antonio 1997, pet. denied). Stated differently, “the right of individuals to use their property in whatever manner they desire remains one of the most fundamental rights an individual property owner possesses.” Rankin v. Covington Oaks Condominium Owners Ass'n, Inc. Not Reported in S.W.3d, 2005 WL 3161039 (Tex.App.-San Antonio, 2005).

Neverthless, the CCRs you receive at time you purchase a home constitute a binding contract -- even if you are not asked to sign them. Prior to closing on your home, you should have an experienced real estate lawyer review and explain the CCRs to you. You can bet that the Homeowners Association and their lawyer are familiar with the CCRs and prepared to enforce them.

The Legal Effect and Enforcability Requirements of a Personal Guaranty

2008-12-19T07:57:00.006-06:00

Many times, lenders and landlords -- particularly in commercial lease situations -- will ask a corporation's principal officers to sign a "personal guaranty" providing for individual liability if the corporation defaults on its obligations. However, the actual language used in the personal guaranty document will significantly effect its enforcability. In order to fully understand whether a given "personal guaranty" is valid and enforcable, a study of the applicable law is in order.

What is a personal guaranty?

A guaranty is an undertaking by one individual to be answerable for the payment of some debt or the performance of a contract by another person. An agreement for a guaranty or surety is a contract in which one party agrees to accept responsibility for the performance of another party.

What constitutes a personal guaranty?

The minimum criteria for entering such an agreement appears to have been established in Park Creek Ass., Ltd., v. Walker. In Walker, a lessor brought action against lessees for breach of a lease agreement against an individual who signed the agreement with the term “guarantor” placed after his signature. Walker challenged his alleged guarantor status on the grounds that the statute of frauds had not been satisfied. The court, however, held that this designation was sufficient. In doing so, the Court noted “it is well established that under certain circumstances, the requirements of the statute [of frauds] may be satisfied by two or more documents considered together.” The Court also found that words such as “guaranty” and “guarantor” have legal meanings, and Walker by using such terms clearly demonstrated his intent to guaranty the obligation. Therefore, the lease agreement and the designation “guarantor” could be considered together for purposes of the statute of frauds, and were sufficient to establish liability as a guarantor.

Finally, relevant to the consideration by a Court as to whether a guarantor agreement has been entered are the explicit terms used therein. For instance in American Petrofina Company v. Bryan, the court found that an individual became a guarantor because the explicit terms of the contract referred to her in the personal pronoun “I.” Similarly, in Coleman Furniture Corporation v. Lieurance, letters that used personal pronouns established that an individual was a guarantor.

What language fails to establish a legally enforcable personal guaranty?

In contrast, in Block v. Aube, the insertion of the term “owner” used after a signature did not establish a personal guaranty. In its analysis, the Court noted that a single contract provision alone should not be given controlling effect; rather “all provisions must be considered with reference to the whole instrument.” In order to satisfy the statute of frauds, a writing must also be complete in every material detail. Finally, to establish an enforceable guaranty, it must be shown, with reasonable clarity, “an intent to be liable on an obligation in case of default by the primary obligor. Taking all of this into account, the Court determined that the guaranty agreement was not complete in every detail, and the use of the word “owner” did not clearly demonstrate intent for such an agreement.

Conclusion

When taken altogether, we may conclude that intent to be liable on an obligation is required to establish a guarantor agreement. Using the designation “guarantor” is sufficient to demonstrate such intent, as is the use of personal pronouns throughout an agreement. But it may be argued that the mere use of the term “personally” alone may not be sufficient to establish intent.

Trey Wilson is a San Antonio lawyer practicing primarily in the fields of real estate law, water law and construction-related claims. He is the principal lawyer of R L Wilson, P.C. Law Firm. He may be reached at (210) 223-4100 or www.sa-law.com

San Antonio's "Most Wanted" Unlicensed Contractor Shows Up to Court

2008-12-18T11:57:00.000-06:00

From WOAI.com

SAN ANTONIO - State investigators call him the "most wanted" unlicensed contractor in San Antonio. They accuse him of doing unsafe electrical work, taking customers' money and leaving jobs unfinished.

The News 4 WOAI Trouble Shooters were there when that contractor finally faced a judge. It's a follow-up to Trouble Shooter Jaie Avila's undercover sting to catch electricians working without a license.

When state investigators helped us put together that hidden camera sting last may, Hugo Guerra was the number 1 person they wanted to catch. Guerra always stayed a step ahead of them, until now.

It was inspectors with the city of San Antonio who finally got Hugo Guerra in court to face charges of doing shoddy electrical work without a license.

Two former customers took the stand against him. One of them was Jesse Negrete.

Last May, Negrete showed us what Hugo Guerra did to his property on the south side. Unfinished wiring, holes in the wall, and an un-grounded breaker box that was a fire hazard. The cost? More than $4,000.

"I'm really glad to see that the state and the city have been following up to prevent this from happening to other consumers," said Negrete.

At the time Guerra worked on Negrete's house, state inspectors had already sent him a cease and desist order, demanding that he stop doing unlicensed work.

When that didn't stop him, investigators with the Texas Department of Licensing and Regulation, asked the News 4 WOAI Trouble Shooters to help set up a hidden camera sting to catch unlicensed electrical contractors.

The sting caught about two dozen unlicensed contractors, but Hugo Guerra never showed up to the house.

He did show up at municipal court last week though. Trouble Shooter Jaie Avila caught up to him outside the courtroom and asked him about Jesse Negrete's house.

"He says that you basically took him for a lot of money and didn't finish the job," said Avila.

"No, I don't remember that," answered Guerra.

When asked if he is licensed to do electrical work, Guerra replied, "Yes."

But Guerra is not licensed by the city or state, to which he said, "Alright, well, that's why I'm here."

Guerra argued that as a licensed "apprentice", he was authorized to take on electrical work, but the city says he should have been fully licensed as an electrician, or at least supervised by one, to do the work legally.

Guerra was found guilty of five misdemeanor code violations and fined more than $2,300.

Most important to state and local inspectors though was publicizing Guerra's case, as a warning to San Antonio homeowners.

In Texas, electrical contractors are required to put their license numbers on their trucks, their advertising and any estimates they give you.

To work in San Antonio, they have to register with the city. You can call 207-1111 to check on their license. That number goes to the city's Development Services agency.

Builder, homeowner mediator gets thumbs up

2008-12-18T11:42:00.001-06:00

Janet Elliott- Express-News AUSTIN — Ten lawmakers who rejected a recommendation to abolish the state agency that helps shield home builders from consumer lawsuits have received a total of at least half a million dollars in campaign contributions from builders since 2000.

Most of the money — $486,000 — came from Houston home builder Bob Perry. Another $22,050 was contributed by the Texas Association of Builders' political action committee.

Other builders may have donated individually, but none approximated the magnitude of Perry's contributions.

The members of the Sunset Advisory Commission — five representatives, five senators and two public members — agreed unanimously late Tuesday to recommend that the Legislature allow the Texas Residential Construction Commission to keep operating.

They rejected a staff recommendation to abolish the five-year-old agency because it is “fundamentally flawed” and doing consumers more harm than good. The staff said the agency prevents home buyers from suing builders for shoddy workmanship until the buyers complete a lengthy dispute-resolution process.

Alex Winslow of the consumer group Texas Watch said it would be naive to suggest that donations from special interests have no impact on legislative debates.

“We're talking about the largest campaign contributor in the state of Texas in Bob Perry, and certainly the home builders lobby is influential at the Capitol,” he said.

Perry would like to see the agency maintained but hasn't discussed the issue with Sunset Commission members, said his spokesman, Anthony Holm.

The commission decided the agency must resolve disputes more quickly — within 105 days instead of the current average of 136 days. Sen. Glenn Hegar, the commission's vice chairman, proposed the streamlined process as a way that homeowners could get to court faster.

Hegar, R-Katy, has received $64,500 in campaign contributions from builder Perry, including $45,000 in 2006 during his first Senate race. Hegar said he has met Perry only once and isn't influenced by his contributions.

“Contributions are not going to determine how I vote on something. People can believe that or not,” he said. “But I can't speak for the rest of the Legislature.”

It's the Legislature, coming into session in January, that will ultimately decide the future of the agency it created in 2003 at the behest of the home builders, who wanted a process to resolve complaints from consumers outside of the courtroom.

John Krugh, corporate counsel for Perry Homes, led a task force that crafted the legislation for the Texas Association of Builders. Krugh was appointed one of four builder representatives on the Residential Construction Commission in September 2003 by Gov. Rick Perry, who had received $100,000 in contributions less than a month earlier from Bob Perry. (The two are not related.)

Rep. Ruth Jones McClendon, a San Antonio Democrat who sits on the Sunset Commission, recommended a recovery fund to help compensate homeowners when builders go out of business. The commission rejected calls from consumer advocates to allow homeowners to bypass the agency and go directly to court.

Texas Watch's Winslow said the agency's dispute-resolution process must be made voluntary.

“For us, that's the bottom line,” he said.

Scott Norman, executive director of the Texas Association of Builders, said the industry is pleased that the Sunset Commission recognized the agency's value.

“We, like others, realize the agency needs to improve,” Norman said.

Sheriffs in Atlanta Overwhelmed by Evictions -- Is the San Antonio, Bexar County Sheriff Next? Evictions Deluge Not Unique to San Antonio

2008-12-11T07:41:00.003-06:00

Flood of home evictions overwhelms sheriffs
Atlanta Business Chronicle - by Joe Rauch Staff Writer

On June 19, sheriff's deputies Mark LaBoy and Joe Buico stood inside the living room of a Gwinnett County house after evicting its former owner at gunpoint. Eight movers cleared the ranch-style home in Lilburn. The eviction was the deputies' second of the day. Thirteen more were waiting.

Metro Atlanta's record foreclosures are overwhelming some counties' sheriff's departments' ability to keep up with the resulting wave of evictions. "We do this two days a week from 9 a.m. to noon, then we go to our real jobs," said LaBoy, who, with Buico, is normally assigned to the domestic violence unit.

Through the first five months of 2008, Gwinnett County's evictions are 8 percent higher than the same period last year, in the first days of the mortgage crisis. So far this year, the county is averaging 685 evictions per month, up from 633 last year.

The traditional one- to two-week backlog of eviction notices has bloomed into a six-week wait for some banks and repossessors. "This started about a year ago, and it hasn't let up," said Maj. David Parr, head of the Gwinnett County Sheriff Department's civil division who oversees the eviction program. Parr said the department schedules evictions every day of the week in morning and afternoon shifts, and plans to do "as many as we can get to."

All of the department's deputies are used for some work on the eviction shift. The department assigns two deputies to each eviction, Parr said, "because we've been attacked before. It's understandably an emotional time for people. We've sent as many as four deputies if we're concerned the situation may get out of control."

The data shows how unpredictable the volume of evictions can be.
In February, the county served 177 more eviction orders than in the same month the year before. This May, the county's 681 evictions were a 7 percent drop from May 2007's total of 736. Other counties have reported similar activity.

The Cobb County Sheriff's Office has seen overall eviction levels rise, and home evictions begin to roughly equal apartment cases. Apartment evictions typically account for about 75 percent of all eviction orders in the county.
Bob Hodge, a real estate agent for foreclosed properties, said he has noted an increase in eviction work in his business, and expects to market roughly 300 foreclosed and eviction homes this year, primarily in urban neighborhoods throughout the city. "Depending on the county, you could get an eviction done as quickly as six or seven days after an order was issued," said Hodge, president of Circle Real Estate Services LLC. "Now it's at least two to three weeks in the best case."
Hodge said the demand has pushed some repossessors to evict during the holiday season between Thanksgiving and Christmas -- a move generally avoided because of the potential emotional impact on a family.

Jason Nelms, a field supervisor for Eviction Services Inc., said business has been "consistent and busy" since the housing market began to slow 18 months ago. Nelms' company is one of the largest eviction moving companies in Georgia.
Evictions force renters or homeowners from their properties by legal order, typically served by county sheriffs or marshals. But the process can vary slightly from county to county.

The lag time from foreclosure or late payment to actual eviction varies, like
Georgia's foreclosure process, which is not judicially monitored. "The bottom line is eviction is driven by an individual's inability to repay," said Russell James, a University of Georgia assistant professor who studies housing and eviction trends. "Lenders don't want to take back houses or evict, but it is used when they make a judgment that the person is unwilling or incapable of repayment."
Only a fraction of foreclosures ever become evictions. Homeowners typically leave before an eviction is required, moving when the home is sold at foreclosure. James estimates that roughly 0.25 percent to 1 percent of home foreclosures ever become an eviction, but the dramatic rise of foreclosures is creating a corresponding spike in evictions.

For the former homeowner evicted by LaBoy and Buico on June 19, the end came after negotiating with mortgage lenders and attorneys during a five-month foreclosure process.

Robyn H., who declined to give her last name, said she lost her home after being laid off by a local engineering firm. Even though she had a fixed-rate mortgage, she was unable to keep up with payments when new work didn't materialize. "I've got nothing left," she said.

Evictions Don't Just Effect the Poor, and San Antonio Isn't the Only Evictions Hotbed.

2008-12-11T07:33:00.003-06:00

Court rules the eviction of Bianca Jagger was proper
By Jef Feeley and Phil Milford - Bloomberg News

Bianca Jagger, the human rights activist who once was married to rocker Mick Jagger and has fought for refugees in Darfur and Iraq among other places, is homeless herself — in a way. A New York appeals court ruled last week that she was properly evicted from a rent-stabilized $4,600-a-month apartment at 530 Park Avenue based on her tourist-visa status.

The owners of the posh Upper East Side Manhattan building had the right to oust Jagger after 20 years since she was in the U.S. on a so-called B-2 visa and couldn't show the apartment was her “primary residence,” the New York Court of Appeals decided. “We conclude that, absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible,” Judge Robert S. Smith wrote in a four-page decision released Oct. 23.

Jagger, also the mother of interior designer Jade Jagger, has been an advocate for human rights in world hotspots. She moved out of the apartment temporarily several years ago, saying it had mold, and withheld the monthly rent payments, according to court records. Jagger sued building owner Katz Park Ave. Corp., claiming the apartment was uninhabitable. Katz later rented the apartment to a new tenant.

Roger D. Olson, a lawyer for the Nicaraguan-born British citizen, told the appeals court Sept. 3 that his client was the equivalent of a “snowbird,” a New York City resident who spends the winter elsewhere and returns in the spring. Such residents still qualify to participate in the rent-control program, he argued.

Magda Cruz, a lawyer for Katz, argued that New York's rent-stabilization laws were set up “to provide affordable housing for New York residents,” and that federal immigration law bars visitors on tourist visas from claiming they have their primary residence in the U.S.

If you are involved in a legal dispute requiring eviction or other landlord-tenant disputes -- in San Antonio or anywhere in Texas -- the experienced lawyers at R L Wilson, P.C. Law Firm have the experience and knowledge you need. Call us today to discuss your eviction law issue at 210-223-4100 or visit us at www.saevictionlawyer.com

R L Wilson, P.C. Law Firm Launches San Antonio, Texas Evictions Website -- www.saevictionlawyer.com

2008-12-11T07:25:00.003-06:00

I am proud to announce the launch of our brand new website dedicated to San Antonio, Texas eviction law -- www.saevictionlawyer.com. The site is R L Wilson, P.C. law firm's online eviction resource. I chose the name "SA Eviction Lawyer.com" for its obvious, easy-to-remember name, and to emphasize that the lawyers at R L Wilson, P.C. Law Firm are some of San Antonio's best evictions lawyers.

Please take a few minutes to browse the new site to learn about our San Antonio eviction law practice, and for links to the Bexar County Justice Courts, which maintain original jurisdiction over all evictions cases.

We will also be posting new websites emphasizing our San Antonio construction law, water law and lien law practices.

Texas Amomng Top 20 in Negative Equity

2008-11-06T22:07:00.000-06:00

Texas was in the top 20 states for the highest percentage of homeowners who owe more than their homes are worth, according to a new quarterly study by First American CoreLogic.

Of the 2.7 million Texas homes that had mortgages, nearly 17 percent showed negative equity at the end of the third quarter. Nationwide, 7.5 million mortgages, 18 percent of all mortgaged properties, had negative equity. The study covered about 80 percent of all mortgages, according to the mortgage data company.

Good Lawyer Needed...and Free Legal Forms Won't Cut It!

2008-10-15T22:12:00.004-05:00

For grins and giggles, I did a Google search for "free legal forms" this evening. I was amazed to see 6,610,000 results returned in 0.13 seconds. Yes, six and one-half million hits! Heck, with that type of mass availability of documents for every conceivable transaction, who needs a lawyer?

There are literally millions of links to millions of sites offering everything from Wind Leases to Partnership Agreements, to complex Mortgage Loan Agreements...and they're all "free" for the taking. As a lawyer who routinely drafts Leases, deeds, powers of attorney, purchase and sale contracts, by-laws and other legal documents, I was more than a little disconcerted. Am I being obsolesced by the Internet -- just like travel agents and newspapers? What will I do? Is it finally time to pursue my lifelong dream of working as a Texas Game Warden? Do I need to trade in the ties for sunscreen and ballcaps?

Alas, after just a few minutes of following those links, I breathed a sigh of relief -- and maybe even slight disappointment. Turns out that those prophetic lyrics from Jimmy Buffett's "A Pirate Looks at 40" ("My occupational hazard being my occupation's just not around") weren't quite appropriate for me. In fact, I was instantly assured that the Free, EZ, Lawyer-in-a-box, Do-it-yourself, file it yourself, skip-law-school-and-the-bar- exam, forms are hardly any competition at all. Guess my time as a guardian of Texas' wildlife and natural resources will have to wait....

The internet has been called the "information superhighway." Its appeal has largely been the vast amount of information made available on it. All just a click away (better than being a "heartbeat away" I suppose). These days, you can find anything and everything on-line, much of which is yours with a simple click on the "download" button. But what are you really getting when you obtain free legal forms for use in your business, investments, and affairs? Far too often the truth is that you are getting exactly what you're paying for on a free site!

Legal forms have far reaching implications. They are significant and important. Lawyers do not give them out for free because they are powerful, and like Spiderman taught us all ..."great power requires great responsibility." Pre-packaged, and particularly free legal forms will often hurt you in the long run. Many times, they will end up costing much more than what you save by not hiring a lawyer to draft your legal documents based upon a thorough understanding of the particulars of your circumstances.

Here are a few basic and very serious concerns about pre-packaged Legal Forms.

1. The pre-packaged legal forms are designed very generally so that they enjoy broad applicability to large group of persons (the public, generally). They are not crafted to apply to your situation and facts. I call this "shotgun blast" law because the people pushing the generic forms get lots of "bang" from the bucks they spent posting the form documents. However, your important legal matters need a skilled rifle sniper who has intimate familiarity with your circumstances. Casting a bait net rarely yields a prize fish, and mass-appeal legal documents may very well miss important nuances of your situation!

2. Not all states or jurisdictions apply the same laws. For example, certain lease, contract and interest provisions which are perfectly legal and quite common in Pennsylvania may be frowned upon or perhaps even illegal in Texas. With free legal forms, you have no way of verifying which State the forms were drafted in, or which State's laws they track. The vast majority of disputes and transactions affected by legal forms are governed by state law. What is legal in New York or Louisiana may be illegal in Texas, and could void a contract that you need need to be valid. Without a lawyer's input, you have no way of verifying the applicability or legality of the provisions of a pre-packaged legal form.

3. The source of the free legal documents is often unknown. Anybody can upload to the internet a "form" or document they have crafted. I wouldn't be any less comfortable having an anonymous person draft my legal documents than I would having my mechanic review my X-Rays. What are the qualifications of the people posting the free documents? How do they make their money? Are there really 6.6 million benevolent souls who are also knowledgable in the law and capable of posting free databases to Google? I think not....but neither of us will ever know.

In sum, free, downloadable legal forms are simply not trustworthy or reliable. They are generally not worth the paper they are printed on, or the pixels they consume on your computer monitor. The money you save by not paying a lawyer to draft and review your legal documents could be spent several times over if your flimsy legal document ends up causing you to get sued...or worse. I know you'd rather pay anything than legal fees. I understand that many people think lawyers charge too much. Please understand, we lawyers generally charge a rate for the value of our services. Our time is our stock in trade. At my law firm, we spend that time in an effort to give you confidence and peace of mind. Surely that's worth a few hundred dollars an hour? In the end, it may save the several thousand we will be forced to charge to defend an invalid legal document.

Trey Wilson is a real estate, construction, water and general litigation attorney in San Antonio, with a Texas-wide law practice. He routinely drafts real estate and other legal documents including deeds, partnership agreements, Leases, Purcase and Sale Contracts, Powers of Attorney, Mortgage Agreements, and Promissory Notes. Though he dreams of being a Texas Game Warden, he has determined that the internet has not obsolesced his line of work, and that he continues to provide a very valuable service to his clients (apologies to Mr. Jimmy Buffett). For that reason, he'll buy more ties, and hold-off on memorizing the Texas Parks & Wildlife Code...for now. Trey Wilson may be reached at 210/223-4100 or www.sa-law.com

Credit crunch squeezes Central Texas home starts -- From the Austin American Statesman

2008-10-12T06:28:00.002-05:00

By now, rows of houses should have replaced the bales of hay on the 700-acre Goodnight Ranch 10 miles south of downtown Austin. But more than two years after the city approved the 3,500-home development, construction has yet to disturb the pasture and farm land just east of Interstate 35 and Slaughter Lane.

Two years ago, developer Terry Mitchell said eight large homebuilders had expressed interest in taking 200 to 300 lots apiece at Goodnight Ranch. They offered between $5 million and $7 million in earnest money, which would help pay for $8 million worth of water and wastewater lines and other improvements. "In late 2007, I surveyed those eight builders, and they collectively couldn't come up to $500,000," Mitchell said. The project is on hold for a year.

Tight credit for builders and buyers alike, slowing job growth and the darkening clouds over the economy have dramatically changed the new-home landscape in Central Texas. Two years ago, builders started a record 16,000 homes in Central Texas. This year, they're on track to build slightly more than 10,000, based on new figures from Residential Strategies Inc.

It's not over yet: Housing experts say the slowdown could continue to deepen for at least another year, until the mortgage and financial markets recover. Short term, that means some good deals for buyers as builders pile on incentives to sell off their inventory before the end of the year.

One result of the builder pullback is that Central Texas doesn't have a glut of unsold new homes that has driven down prices, as is the case in many other cities. At the current sales rate, it would take 6.3 months to sell the current supply, compared with almost 11 months nationally.

The local median price for new homes in the third quarter was $210,870, almost unchanged from a year earlier, according to Residential Strategies.

"We've been impacted, but we're not suffering a hangover that a lot of those other markets are suffering from," said Derrick Jones, a former marketing executive for homebuilders who now owns Austin City Living, a real estate brokerage. Still, he said, builders are offering concessions ranging from free upgrades for buyers making a full-price offer to as much as $100,000 off on an $800,000 home. Jones said the incentives will start easing as the year comes to a close but won't go away altogether until the market rebounds.

Mortgage money remains tight, with some lenders requiring up to 20 percent down — a sharp contrast to the zero-down loans that proliferated just two years ago, Jones said. "I think the lenders are more receptive to making loans here than they would be in some other more depressed parts of the country," he said. But as for 100 percent financing, "it's really just not there any more."

Commercial capital drying up

The credit situation is much more severe for builders and developers. Money to buy land for future subdivisions became scarce this summer and has all but dried up in recent weeks.

"It's extremely difficult to get money," said Bob Wunsch, chief executive of Austin-based Waterstone Development, a longtime Williamson County developer. "You have to have very good builders and a very good piece of land, or I doubt you're going to get money in this market."

National, publicly traded companies, which account for almost 60 percent of homebuilding activity in Central Texas, have been especially hard hit by the credit contraction. Last year, Dallas-based Centex Homes signed a contract to buy 450 acres of the Pearson Ranch in Williamson County, planning a $275 million, 1,400-home subdivision, which would have been its biggest project ever in Central Texas. Several months later, it canceled the deal as the housing downturn deepened.

In late December, D.R. Horton pulled out of the Headwaters at Barton Creek, a proposed 1,000-home development where it had purchased options on lots.

The builders' retreat has some real estate observers questioning whether the stage is being set for a housing shortage, at least in some areas, once the economy rebounds.

It takes three years, sometimes longer, to plan and build a subdivision, Mitchell said. But developers are reluctant to spend the money to prepare land until they're confident builders will be ready to buy lots. "If you make the assumption that the market is going to grow someday in the future, we're going to have a (lot) shortage," Mitchell said. "We are a manufacturing business with a three-year cycle, so when you turn off the plant, you don't have houses in two months" once you restart it. "It's going to be awhile."

However, because builders slammed on the brakes so quickly once the downturn started, there is an oversupply of lots ready to build on: more than 31,000, up from about 27,000 a year ago. Most of the excess is in outlying areas, including west of Lake Travis, where there's an 85.8-month supply. Far Southeast Austin, near Bastrop, has more than a 90-month supply.

With scant new development in the pipeline, the overall supply will be absorbed in 2½ to three years at current demand levels, predicts Mark Sprague, the Austin partner for Residential Strategies.

But forecasting the future is clouded by the huge uncertainties about the economy and the spreading credit crisis. "In light of the seriousness of the issues at hand regarding the global financial markets, it is extremely difficult to gauge the extent of the slowdown in the local housing market over the next year or so," said Eldon Rude, the Austin director of Metrostudy, which tracks and forecasts the housing market. "Any forward view of the market must assume that the current credit crisis will be resolved in the coming quarters."

Rude thinks new-home prices over the next year or so will be flat at best. "We're going to have less demand for housing over the next year than we have in years past," he said.

Sprague said if current sales trends stay steady for the foreseeable future, the new-home market should be close to bottoming out. The wild card, he said, is "the stabilization of Wall Street and the outcome of the financial bailout plan." "With the uncertainty of the credit markets and the increased prospects for a national recession, there continues to be a chance for further market erosion," Sprague said.

Austin has several factors in its favor. Job growth has slowed significantly in the past year but remains about 2 percent, compared with heavy job losses nationally.

"We continue to have high-paying jobs move here compared to other markets," Sprague said, citing the money management firm Dimensional Fund Advisors as an example. The firm moved from California to Austin in the past year, occupying a brand-new office building in West Lake Hills. "As a state, we created more jobs than the next 14 (highest-ranked) states in job creation, so we're in a good place."

Builders also are closely watching the resale market, where the 10,300 listings in August were the fourth-highest on record, according to the Austin Board of Realtors. That is substantial competition for new-home sales.

The resale median price has continued to rise. But there are early signs that could be changing. The August median of $195,000 was up just 2 percent from a year earlier, the smallest increase since September 2005, when the median rose 1 percent.

"Resale in a good location is still selling; it's just not selling at prices that people were able to get two years ago," said Helen Edwards, Central Texas regional president of Coldwell Banker United, Realtors. "We're seeing signs of activity on the new construction product, new homes that are priced aggressively, so we know that the buyers are still active in the marketplace," Edwards said. "Plus, we're hearing loud and clear from many of our sellers that they're comfortable with lowering their listing prices if it means getting offers and selling quickly."

Looking for upturn

Some private builders are betting on a rebound.

Wunsch said he has been positioning his company for a turnaround in the next 12 to 18months by getting entitlements and approvals for 6,000 lots in several projects. They include Avery Center in Round Rock and Three Forks and Somerset Hills in Georgetown. After Centex canceled its Pearson Ranch plans, Wunsch bought 195 acres of that land and was able to sell 400 lots. Once the market rebounds and builders release money to buy lots, "we'll be ready to serve them pretty quickly," Wunsch said. "That's been our whole game plan. We're going to be two years ahead of another company starting from scratch."

The new-home market is oversupplied now, "but the good news is that we are back to the 8,000 to 10,000 starts range, which is a more normal pace for the Austin market," he said. He said Waterstone has formed a real estate investment fund with several investors. The primary investor is Hans van Veggel, chairman of a Dutch company that is the largest shopping center developer in Europe.

"They've committed dollars, and as opportunities come along, we have the ability to jump on those opportunities," Wunsch said. "In this environment, with banks being apprehensive on new loans, we're still fortunate we can get loans, but we have to put in more equity." Wunsch bases his optimism on several factors. His contacts in Europe, he said, believe "Texas is still the place to be in the U.S., and Austin is the diamond of them all."

Wunsch is on the board of the economic development committee in Round Rock and says there are "quite a few" new corporate prospects eyeing the region for expansion or relocation. And recently, he said, he finally had some encouraging conversations with national homebuilders. "They're cautious, but they're starting to talk optimistically," Wunsch said.

Ryan Jackson, sales director of Austin-based Streetman Homes, also is optimistic that the market will turn next year, once the financial bailout plan is under way and the presidential election is decided. "We are anticipating growth for next year," Jackson said.

Mitchell said he and his partners hope to start work on Goodnight Ranch within the next year. They've already spent $3 million on some of the infrastructure needs, and the Austin school district opened Blazier Elementary School nearby last year. "We're pretty convinced that the market is going to turn," he said. "We don't want to wake up one day and say, 'It's a good time to start building a house; we'll see you in two years.' We'd like to be ready for this."

Buying Real Estate During The Economic Crisis

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Given the current economic crisis -- which appears to be growing global in scope -- has made buying real estate more difficult. Credit is tough to come by, and these days you need a job to buy a house. That is, unless you are in a significant cash position, which doesn't describe most Texans. Most of us need credit, and are having diffculty obtaining it.

The credit crisis continues to grow, and uncertainty looms large. Third quarter 401(k), 457, 403(b) and IRAs have dropped. Savings rates have dropped. Gas prices remain high, and wages low.

With the central banks around the world working in concert to lower interest rates, crashing stock markets in the U.S., Europe & Asia, rising unemployment, a dwindling Peso and a hotly-contested and increasingly-ugly U.S. presidential election, even the most optimistic real estate agents and mortgage brokers are getting nervous.

They say that all real estate (like all politics) is local. So...how does the national/global crisis effect San Antonio homeowners or home buyers? As the U.S. economy falls into a recession, jobless numbers have increased and more than 750,000 American jobs have been lost this year. According to the US Dept. of Labor (Bureau of Labor Statistics) as of the end of September 2008, the national unemployment rate was officially 6.1 percent. The number of unemployed persons is 9.5 million, and over the past 12 months, the number of unemployed persons has increased by 2.2 mil-
lion and the unemployment rate has risen by 1.4 percentage points. Some unemployment experts have sugggested that the true rate of unemployment in the U.S.-- if you factor in those making less money than they were two years ago or working at part-time jobs rather than full-time jobs because they can't find the right situation, those who are underemployed, and those who have just given up looking for a job and have fallen off the rolls -- is approaching 10 percent.

There is a strong nexus between rising unemployment and a faltering real estate market because most lenders will not issue a mortgage loan, unless the borrower can demostrate sufficient incme to make the payments. These days, the income won't come from the stock market or from "flipping." As such, jobs are virtually essential for obtaining a mortgage loan.

In Texas, almost 600,000 people, or 5.0% of the workforce was unemployed in August. This was up from 4.7% in July and 4.1% in April. In San Antonio -- which many claim has been insulated from the housing crisis -- new and existing homes sales have dropped. San Antonio builders started construction on 33 percent fewer homes this (3rd) quarter than they did during the same period last year. Sales of new homes in San Antonio are down 36 percent from last year.

The credit squeeze has reminded banks and mortgage lenders that, while credit scores are perhaps decent indicators of whether a borrower has financial stability, they don't make the mortgage payments. Similarly, FICO scores don't take into account whether someone has substantial savings or cash on hand.

On the other hand, if you have a steady job, demonstrable income, and a good credit score, you may want to talk to your lender about refinancing. Just this morning, Freddie Mac announced that interest rates on 30 year mortgages have dropped to below 6% (5.94% to be exact). So there is some good news. Here's some more:

If you have an adjustable rate mortgages (ARM) tied to United States Treasuries, your interest rate may adjust downward -- maybe even to the 4.5 percent range. How could this happen? If the one year Treasury Bill Index is at 1.5 percent, and you have a 3 percent margin attached to your ARM loan, that adds up to a 4.5 percent interest rate.

If you have an ARM tied to the London Interbank Offered Rate (LIBOR) or some form of interest-only loan, certain lenders will lock-in adjustable rates for a small fee (around $250). Find out when and at what interest rate your loan will adjust to. The cost of converting your ARM to a fixed-rate loan may be well worth the savings to be realized long-term. Plus, any financial certainity you can obtain in today's climate is probably a good thing.

While we all have plenty of reasons to worry, smart home buyers with demonstrable income and good credit can find great deals. If you can whether the storm and stay on top of your mortgage payments, a good buy today could result in a terrific sale once the storm has passed.

As always, prior to obtaining a mortgage loan or entering into a real estate sale/purchase contract, you should consult with an experienced real estate lawyer. San Antonio lawyer Trey Wilson of R L Wilson, P.C. Law Firm has a diverse practice related to real estate, residential, construction, mortgage, landlord-tenant, homeowners association and general litigation. In September 2008, Trey Wilson was named by Scene in SA magazine as one of San Antonio's best real estate litigation attorneys. He can be reached at 210/223-4100 or www.sa-law.com.

S.A. new-home starts down 33%; housing inventory still falling

2008-10-10T05:04:00.000-05:00

By Aïssatou Sidimé - Express-News New-home starts dipped 33 percent during the last quarter, but still were outpaced by the number of home closings, according to a new report. Still, rising lot inventories signal that the San Antonio housing market still has a supply imbalance, experts say.

San Antonio builders started 2,330 new homes in the three-month period ended Sept. 30 -- down 33 percent from the same period last year, according to Residential Strategies Inc. They closed sales on about 2,600 homes during the third quarter, down 36 percent from a year earlier.

That places builders on track to sell between 10,500 and 11,000 new homes by year-end, RSI's San Antonio representative Cassie Gibson said.

San Antonio builders have been working to reduce housing inventories since late last year. While it appears to be working, based on the number of homes sold, builders are seeing a rising level of empty lots.

The number of vacant developed lots was 39,884, up 2,000 lots from the previous quarter. That's more than double the level considered to represent a balanced housing market.

“San Antonio's 50.7-month supply is the highest of Austin, the DFW-corridor,” Gibson said.

Michael Moore, a partner in Ironstone Development, said housing demand is so slow that his business nearly has dried up.

“At any one time, we used to have four to five projects going; but this year, we haven't started a new subdivision in nine months,” said Moore, president of the Greater San Antonio Builders Association.

San Antonio housing developers say inventories could continue to rise as demand dips in response to tightening credit and new federal rules that ban builder-funded cash gifts to buyers. Those gifts played a key part in sales for new homes priced under $150,000, he said.

WHAT CLAIMS OR DEFECTS ARE NOT COVERED BY TEXAS TITLE INSURANCE POLICIES???

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In general, a title policy won’t cover problems with your title that occur after the date you purchased the policy. It will also not protect you from problems that you create or from problems unrelated to your or the lender’s property interests.

Your policy also will not cover any special exceptions – such as a public utility easement – added by the title company during the title examination process. These exceptions must be listed in Schedule B of your policy. The company must make you aware of each exception and describe it using common language so that you can easily locate the reason for the exception in public records.

In addition, a title policy generally will not cover the following:

The penalties of your failure to pay for your property.

An unrecorded title defect that you knew about or allowed to occur.

Violations of building and zoning ordinances and other laws and regulations related to land use, land improvements, land division, and environmental protection.

Restrictive covenants limiting how you may use the property and stating the requirements for buildings constructed on the property. Schedule B lists these restrictions. Be sure to request copies of any restrictions and have your attorney explain them. The title company may charge you for the copies.

Losses resulting from rights claimed by “parties in possession,” such as renters or anyone else occupying the land. If you object to the exception, the title company may inspect the property and delete the exception from your policy. The title company may charge for the inspection.

Condemned land, unless a condemnation notice appeared in the public record on the policy date or the condemnation occurred before the policy date.

Homestead, community property, or survivorship rights of a policyholder’s spouse. Texas homestead laws address the rights of a spouse or survivors of a property owner.

Title irregularities arising from a deceased person’s estate, a bankruptcy estate, or a trust.

Claims from other people who may have certain rights if your property is near a body of water or has a river or stream flowing through it.

Certain taxes and assessments. Your title policy ensures that all property taxes and assessments are paid for the most current year available. However, certain tax exemptions claimed by previous owners could result in more taxes being assessed against your property in the future. If you buy property with borrowed money, the lender may ask that its mortgagee policy delete the exception for “subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership.” In such cases, the title company may require that the taxes be calculated and paid.

Before purchasing or accepting a Texas title insurance policy, you should consult an experienced Texas real estate attorney to address your coverages and property rights. San Antonio lawyer Trey Wilson of R L Wilson, P.C. law Firm was recently named by his peers as one of San Antonio's best real estate litigation attorneys. He regularly reviews, makes claims under, and challenges Texas title insurance policies. he may be reached at www.sa-law.com or 210/223-4100