Bulletin: TX000060

Dear Associates:

The Texas Legislature passed a number of bills relating to real estate in 2001. The following are some of the most significant legislation.

RECORDING AND RECORDS

Record Archives Fee - $5 per Document - HB 370 (effective 9/1/01)
This bill amends Section 118.011, Local Government Code. It allows the commissioners court of a county adjacent to an international border to adopt a Record Archives Fee of not more than $5 per public document, such as deeds, releases, and deeds of trust, for preservation and restoration of records archives.

Notary Seals on Electronically Transmitted Certificates - SB 276 (effective 5/11/01)
This bill amends Section 121.004, Civil Practice and Remedies Code, relating to the requirements of an acknowledgment, to provide that the application of an embossed seal (for a notary acknowledgment) is not required on an electronically transmitted certificate of an acknowledgment. An electronically transmitted authenticated document must legibly reproduce the required elements of the seal.

Uniform Electronic Transactions Act - SB 393 (effective 1/1/02)
This bill adopts the Chapter 43, Business and Commerce Code, which is the Uniform Electronic Transactions Act (UETA). UETA has been adopted in various forms in approximately 38 states. This bill is the first comprehensive Texas law on electronic commerce, transactions, and records. Section 43.002 contains definitions. It can apply to real estate transactions and promissory notes. Section 43.011 provides that an acknowledgment or notarization may be satisfied if the electronic signature of the notary, together with the other information required to be included for the notary acknowledgment is attached to or logically associated with the signature or record. A seal is not required, but any required information on the seal should be shown. Amended Section 195.002, Local Government Code, provides that a county clerk may accept any filed electronic record and may electronically record that record if the filing and recording comply with the rules adopted by the Texas State Library and Archives Commission. This amendment authorizes electronic records, such as electronically created deeds and mortgages, to be filed and recorded.

LIENS

Secret Government Liens and Paving Liens - HB 1050 (effective 9/1/01)
This bill adds new Section 51.008, Property Code, to provide that a lien on real property in favor of a governmental entity must be recorded in the real property records and must contain a legal description of the property. This requirement does not apply to ad valorem taxes, general state tax liens, and liens for wages and penalties paid by the Texas Employment Commission. The bill also amends Section 314.043, Transportation Code, to provide that the paving lien notice must give the name of "the subdivision and affected blocks if the street abuts a subdivision for which a plat has been recorded in the county clerk's office." Section 313.042, Transportation Code provides that the paving lien is superior to any other lien except a claim for ad valorem taxes.

Texas Workforce Commission Priority Lien - HB 2028 (effective 9/1/01)
H.B. 2028 adds new Section 61.0825, Labor Code, which "provides that a lien established by TWC against an employer indebted to the state for penalties or wages is superior to any other lien on the same property, including a lien for ad valorem taxes."

Company Policy: Do not waive a recorded Texas Workforce Commission Lien based on foreclosure of a previously recorded mortgage.

Marital Property-Reimbursement and Contribution - HB 1245 (effective 9/1/01)
In 1999, the Texas legislature adopted Sections 3.401, et seq., Family Code, to provide statutory guidelines for reimbursement and contributions made during the marriage. Section 3.405 provides that the claim for economic contribution does not affect rights of management, control or power of disposition of marital property.

Company Policy: You do not need to except to rights of reimbursement unless a court proceeding or recorded claim reflects a current claim. You should continue to require joinder of a spouse where otherwise appropriate, such as where the spouse may have homestead rights. Do not inure that property is "separate" or "community".

Payment to Judgment Creditor - HB 2557 (effective 9/1/01)
This bill amends Section 31.008, Civil Practice and Remedies Code, to allow the judgment debtor to secure a release of judgment lien by court order if the judgment creditor refuses to accept payment of the amount under the judgment or accepts payment and refuses to execute a release. The court may direct the judgment debtor to prepare and file a recordable release with the clerk if the court finds that the amount of the judgment has been paid into the registry of the court, or the judgment creditor has accepted payment and refused to execute a release of judgment.

Property Owners' Associations - SB 507 (effective 1/1/02)
This new Chapter 209, Property Code, is the Texas Residential Property Owners Protection Act. Section 209.003 provides that the chapter applies only to a residential subdivision subject to restrictions in a declaration authorizing a property owners' association to collect regular or special assessments on all or a majority of the property in the subdivision.

Section 209.004 requires the property owners' association to record in the county a management certificate, stating the name of the subdivision, name of the association, recording data for the subdivision, recording data for the declarations, mailing address for the association or manager, and other information the association considers appropriate.

Section 209.009 provides that the property owners' association may not foreclose a lien solely for fines or attorneys' fees relating to fines.

Section 209.010 requires the property owners' association to send the lot owner written notice not later than 30 days after its foreclosure sale informing the lot owner of the owner's right to redeem. The association also must record an affidavit not later than 30 days after the date of such notice stating the date on which notice was sent and containing a legal description. The property owner may redeem the property from any purchaser at the foreclosure sale not later than the 180th day after the date the association mailed the written notice to the owner informing the owner of the sale and right of redemption. If the lot owner redeems the property, the purchaser must execute and deliver a deed to the redeeming owner. If the redeeming owner fails to record the deed before the expiration of the redemption date and fails to record an affidavit stating that the lot owner has redeemed, the lot owner's right of redemption as against a bona fide purchaser or lender for value expires after the redemption period. Property that is redeemed remains subject to all liens and encumbrances on the property before foreclosure. If a lot owner sends by certified mail a written request to redeem on or before the last day for redemption, the lot owner's right of redemption is extended until the 10th day after the date the association and any third party foreclosure purchaser provides written notice to the lot owner of the amounts that must be paid to redeem (with no maximum period otherwise established for the written notice to be sent). After the redemption period and any extended redemption period expires, the association or third party foreclosure purchaser shall record an affidavit in the real property records that the lot owner did not redeem the property.

Company Policy: in order to insure based on a Property Owner's Association foreclosure, we require an affidavit from the association showing compliance with the requirement for foreclosure, and showing that the redemption period has ended without extension. The affidavit should state that no attempted redemption has occurred, whether or not the attempt complied with the law. We must confirm that the homeowner is no longer in possession of the land. Our underwriting personnel must review and approve the affidavit.

TAXES

Taxes-Portable Over 65 Homestead Exemption - HB 1940 (effective 1/1/02)
HB 1940 amends Section 26.10, Tax Code, to provide for calculation of the additional tax against the former homestead of an owner 65 years of age or older who had the applicable residence homestead tax exemption on January 1, if the owner qualifies for different property for a residence homestead during the same year.

Company Policy: If property with the over 65 homestead exemption is sold after payment of taxes, taxes must be readjusted for that year.

Recapture of Abatement - SB 986 (effective 6/13/01)
S.B. 986 amends Section 312.205, Tax Code to give cities the statutory authority to recapture lost property tax revenue if the owner of the commercial enterprise fails to create the number of new jobs required by the tax abatement agreement or fails to meet the requirements of the agreement.

Company Policy: if your tax search or if the real property records disclose an existing tax abatement agreement relating to the property, except to the terms of that agreement.

Federal Estate Taxes - HR 1836 (Economic Growth and Reconciliation Act of 2001, 107-84)
This federal legislation changes the gift taxes and estate taxes. The lifetime gift amount is raised to $1,000,000. The equivalent exemption for Federal Estate Taxes based on the value of the decedent's estate is:

If the decedent by will or inheritance leaves property to a surviving spouse (where a U.S. citizen) outright or under qualified terminable interest provisions (as to which election is made), that property is not considered in calculating taxes due on the estate: there is a complete, unlimited marital deduction for such transfers.

Company Policy: you should secure reasonable evidence, such as affidavit and inventory to determine whether estate taxes may be owed on the estate of a decedent owner who died within the last ten years. You should not rely upon reduction in the value of the estate because of the marital deduction unless you secure underwriter approval. If the estate may be taxable and the taxes have not yet been paid, please contact our underwriting personnel.

PROBATE

Sale of Minor's Interest Without Guardian - HB 898 and HB 3144 (effective 9/1/01)
HB 898 and HB 3144 amend Sections 889 and 890, Probate Code, to allow a natural or adoptive parent, or managing conservator to secure a probate court order to sell a minor's interest in property without being appointed guardian of the estate of the minor, if (1) the minor has an interest in real or personal property (whether or not derived from an estate of a decedent), and (2) the net value (in excess of all lien payoffs) of the minor's interest does not exceed $100,000.

VACANCIES

Patent for Vacancies in Bastrop County - HJR 52 (Vote 11/6/01)
House Joint Resolution 52 would amend the Texas Constitution to provide that the State of Texas relinquishes and releases without payment any claim of sovereign ownership or title to an interest in and to the lands, excluding the minerals, in certain tracts in the A.P. Nance Survey, Bastrop County.

Patent Cleanup Provision for Vacancies - HJR 53 (Vote 11/6/01; effective 1/1/02 if approved)
H.J.R. 53 would add new Section 2B, Article VII, Texas Constitution to authorize the surrender, without payment for a patent, of the interest in land belonging to the State of Texas. The conditions under which a patent may be issued, excluding mineral rights, are: (1) the land is surveyed, unsold, permanent school fund land according to the records of the General Land Office; (2) the land is not patentable under the law in effect before January 1, 2002; and (3) the person claiming title to the land (A) holds the land under color of title; (B) holds the land under a chain of title that originated on or before January 1, 1952; (C) acquired the land without actual knowledge that title to the land was vested in the State of Texas; (D) has a deed to the land recorded in the appropriate county; and (E) has paid all taxes assessed on the land and any interest and penalties associated with any period of tax delinquency.

MANUFACTURED HOUSING - NOTE: A MORE DETAILED ANALYSIS OF MANUFACTURED HOUSING APPEARS IN BULLETIN TX000059

Manufactured Housing - Tax Lien HB 468 (effective 9/1/01)
This bill amends Section 32.015, Tax Code. A purchaser of a manufactured home is not required to pay any taxes imposed in a tax year that begins on or after January 1, 2001 if the chief appraiser for the county in which the manufactured home is located issues a written statement that no unpaid taxes have been reported on the manufactured home. A chief appraiser may charge a fee not to exceed $10 for each requested statement.

Company Policy: You may rely on your normal tax search in insuring land with a manufactured housing unit, if our other requirements for insuring manufactured housing are met.

Manufactured Housing-Notice of Installation or Attachment; Definition of Real Estate; Closing Location - HB 1869 (effective 1/1/02)

(1) If a document of title has been issued Notice of (Improvement) Attachment: Amended Article 5221f, Section 19, provides that, before issuance of a certificate of attachment, a title insurance company which surrenders the manufacturer's certificate or the original document of title shall file a notice of improvement attachment in the real property records. The notice must state that the manufacturer's certificate or the original document of title has been surrendered for cancellation and a request has been made for issuance of a certificate of attachment. The notice must sufficiently identify the home and a legal description or the appropriate tract or parcel number of the real property on which the home is located. The notice is valid until the certificate of attachment is recorded in the real property records. HB 3553 (effective 9/1/01) amends Article 5221f, Sections 14 and 17, to provide for a notice of attachment under similar circumstances.

(2) Classification as Real Estate, Place of Closing: New Article 5221f, Section 19A, provides that a manufactured home that is permanently attached to the real property is classified and taxed as real property if the real property to which the home is attached is titled in the name of the consumer under a deed or contract for sale. A manufactured home is considered permanently attached if the home is secured to a foundation and connected to a utility, including a utility providing water, electric, natural gas, propane or butane gas, or wastewater services. The closing of the transaction for acquisition of the manufactured home considered to be real property must occur at the office of (1) a federally insured financial institution, (2) a title company, or (3) an attorney at law. If the real property is purchased under a contract of sale, the contract must be filed in the real property records. A manufactured home permanently attached to real property before January 1, 2002, or placed in a manufactured home rental community is not subject to this section 19A.

(3) Treatment as Real Estate and Notice of Installation: Amended Section 2.001, Property Code, provides that a manufactured home is real property, unless the home is placed (1) on a lot, temporarily or permanently, that is not titled in the consumer under a deed or contract of sale, or (2) in a manufactured home rental community. The Texas Department of Housing and Community Affairs may not issue a document of title for a new and untitled manufactured home at the first retail sale if the home is to be permanently installed by the retailer on real property titled in the consumer under a deed or contract for sale. A title company or attorney at law conducting the closing under Section 19A, Article 5221f, or conducting the resale by a financial institution or retailer of a manufactured home that is to be permanently installed, or the retailer or retailer's agent shall file in the real property records a notice of installation not later than 30 working days after the date installation is complete and shall forward the certificate of origin and a copy of the notice of installation to the Texas Department of Housing and Community Affairs. The notice of installation serves as a completed cancellation application. The notice of installation must be notarized, on a form prescribed by the Texas Department of Housing and Community Affairs, contain a description of the manufactured home (including make, model, dimensions, federal label number, state seal number, and identification or serial number), include a verification of installation of the manufactured home, include a wind zone designation for the county if known, be signed by the retailer or installer.

(4) Refinancing: Amended Section 62.004, Property Code, which relates to refinancing of liens on manufactured housing, provides that a lien for the debt for the new improvement of a manufactured home on real property may be refinanced with another lien on the real property. New Section 62.005, Property Code, provides that if a debt for the manufactured home was contracted for in writing, that debt is considered to be for work or materials used in constructing new improvements thereon, and thus constitutes a valid lien on the homestead when the certificate of attachment is filed in the real property records. When the manufactured home converts to real property, the lien on the property exists independently of any existing lien on the real property to which the home is permanently attached.

(5) Taxation as Real Estate: Amended Section 32.014, Tax Code, provides that if the ownership of the real property and the manufactured home are the same, the manufactured home shall be appraised and taxed as an improvement to real property, and the tax lien attaches to the real property on which the manufactured home is located, regardless of the classification of the manufactured home under the Property Code. If the ownership of the manufactured home, by deed or contract of sale, and the real property on which the manufactured home is affixed are not the same, the manufactured home shall be separately appraised and taxed, and the tax lien on the manufactured home does not attach to the real property.

Company Policy: (1) You may insure a purchase money loan on homestead that secures both the initial finance of the purchase of the land and purchase of a manufactured housing unit (and installation costs) without requiring a mechanic's lien contract. (2) You may insure a refinance of a prior mortgage of the land and manufactured housing unit on homestead that was insured by Stewart Title. (3) You may insure a mortgage on homestead that combines a refinance of the outstanding purchase costs for a manufactured housing unit on the land and outstanding purchase money for the purchase of the land. (4) You may insure a mortgage debt on homestead that is additionally secured by a mechanic's lien contract for the purchase of the manufactured housing unit., (5) If the loan is not over $100,000 and does not include large acreage (e.g. over 10 acres), but does not otherwise comply with our requirements, we will consider insurance of refinances on a case by case basis. Otherwise, please call our underwriting personnel.

Manufactured Housing Refinance and Mechanic's Lien Contracts - HJR 5 (Vote 11/6/01; effective 1/1/02 if approved)
Attorney General Opinion JC-0357, dated March 27, 2001, concluded that "Section 62.003 of the Property Code, which converts a personal property lien on a manufactured home to a purchase money lien on real property when the manufactured home is converted to real property, does not create a valid purchase money lien on homestead property under article XVI, section 50 of the Texas Constitution." In response, HJR 5 proposes to amend Article XVI, Section 50(a) of the Constitution to add a new subsection (8). New Subsection (8) would state that the homestead may be encumbered to secure: "the conversion and refinance of a personal property lien secured by a manufactured home to a lien on real property, including the refinance of the purchase price of the manufactured home, the cost of installing the manufactured home on the real property, and the refinance of the purchase price of the real property." Section 50(a), Article XVI, Texas Constitution, requires that 12 days elapse after an owner makes an application for an extension of credit before entering a contract for repair or renovation of improvements on homestead. This amendment would change that waiting period to five days.

DISCLOSURES

Disclosure of Agricultural Development District - HB 1880 (effective 6/16/01)
New Chapter 60, Agriculture Code authorizes creation of Texas Agricultural Development Districts for the purpose of processing an agricultural commodity. Section 60.051, Agriculture Code, provides that the district may not impose ad valorem taxes, but it may impose assessments. Section 60.063 provides that any person who proposes to sell or convey real property in the district must give written notice to the purchaser that the land is located in the district. The notice must be given prior to or as an addendum or paragraph to the purchase contract. The purchaser must sign the notice. At closing, a separate copy of the notice with current information about the district and its power to impose assessments on the land shall be executed by the seller and buyer and recorded in the deed records. Notice is not required to be given unless a certified copy of the order creating the district has been recorded in the real property records. Section 60.122 provides that the assessment runs with the land and successor landowners are bound to pay the district assessments, provided that notice to the purchasers was provided to the successor landowner under Section 60.063. Section 60.132 provides that not later than the 30th day after the date on which an assessment order is issued, the district shall file a notice of the assessment in the deed records. An example of a possible Notice of Agricultural Development District is available through the references section at the end of this bulletin.

Notice for Utility Service Provider - HB 2033 (effective 9/1/01)
HB 2033 (effective 9/1/01). H.B. 2033 adds new Section 13.257, Water Code, which requires notice to be provided to a purchaser of unimproved real property that the land is served by a utility service provider, typically in an area outside a municipality's jurisdiction. Section 13.257 defines a utility service provider as a utility, water supply or sewer service corporation, or a special utility district organized under Chapter 65, Water Code. If a person proposes to sell or convey unimproved real property in a certificated service area of a utility service provider, the person must give the purchaser a prescribed written notice. The notice must be given to the prospective purchaser before the execution of the contract, separately or as an addendum or paragraph to the contract. The utility service provider must file the map of the certificated service area in the real property records. At closing a separate notice with the current information shall be executed by the seller and purchaser, acknowledged, and subsequently recorded in the real property records. See the prescribed notice available through the references section at the end of this bulletin.

PLATS

Plats-Dormant Subdivisions - HB 3161 (effective 6/14/01)
Amended Section 232.002, Local Government Code, provides that the approval of a subdivision plat by a county commissioners court expires fifty years after approval if no portion of the land subdivided under the plat is sold or transferred before January 1 of the 51st year after the year in which the plat was approved.

CONTRACTS FOR DEED

Contracts for Conveyance of Real Property - SB 198 (effective 9/1/01)
This bill imposes statewide protections for contract for deed purchasers. Amended Section 5.061, Property Code, provides that Sections 5.061-5.080 apply to transactions involving an executory contract for conveyance of real property used or to be used as the residence of the purchaser or a person related to the purchaser within the second degree of affinity or consanguinity of the purchaser. A lot measuring one acre or less is presumed to be residential property.

Section 5.063 requires that the Notice of Seller's Remedies on Default under Section 5.064 must be delivered by registered or certified mail, return receipt requested. The notice must be conspicuous and printed in 14-point boldface or upper case and must include on a separate page the statement:

NOTICE

YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY YOUR PROPERTY. UNLESS YOU TAKE THE ACTION SPECIFIED IN THIS NOTICE BY (DATE) THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR PROPERTY.
The notice must (1) identify and explain the remedy the seller intends to enforce, and (2) if the purchaser has failed to make a timely payment, specify the delinquent amount, itemized as to principal and interest, and any additional charges claimed, such as charges or attorney's fees, and the period to which the delinquency and additional charges relate, and (3) if the purchaser has filed to comply with terms of the contract, identify the terms violated and the action required to cure the violation. Section 5.064 provides that the seller may enforce the remedy of rescission or of forfeiture and acceleration against a defaulting purchaser if the purchaser fails to cure within 60 days.

Section 5.066 applies in event of a purchaser's default after the purchaser has paid 40% or more of the amount due or the equivalent of 48 monthly payments. It provides that the seller is granted the power to sell the purchaser's interest through a trustee designated by the seller. The seller must provide the purchaser a notice of default under the contract and give the purchaser at least 60 days after notice is given to cure the default. The notice must be provided as provided in Section 5.063 (identify the seller's remedy, the delinquent amounts, and any terms violated, and mail notice to the purchaser's residence or place of business). The notice must substitute the following statement:

NOTICE

YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY YOUR PROPERTY. UNLESS YOU TAKE THE ACTION SPECIFIED IN THIS NOTICE BY (DATE) A TRUSTEE DESIGNATED BY THE SELLER HAS THE RIGHT TO SELL YOUR PROPERTY AT A PUBLIC AUCTION.

The trustee or substitute trustee must post, file, and serve the notice of sale and the county clerk must record and maintain the notice of sale in accordance with Section 51.002 (related to deeds of trust). A notice of sale is not valid if it is given before the period to cure has expired. The sale must be conducted in accordance with Section 51.002. The seller must (1) convey to the purchaser at the sale by the trustee the fee simple title, and (2) warrant that the property is free from any encumbrances.

Section 5.076 provides that the seller shall record the executory contract and disclosure statement under Section 5.069 (relating to the property condition) on or before the 30th day after the date the contract is executed. The seller also must record the instrument that terminates the contract if the contract is terminated. Section 5.079 requires the seller to file the deed to the purchaser not later than the 30th day after the seller receives the purchaser's final payment due.

Company Policy: You may insure the purchaser's right to purchase the land under a contract for deed if the contract is acknowledged by the seller, contains an adequate legal description and is recorded in the real property records. You should except to the terms of the contract. If you are requested to insure the seller's interest under a contract for deed, or to insure a mortgage of the seller's or buyer's interest, call our underwriting personnel. You may insure without exception to a contract for deed if (1) you secure an affidavit from the seller showing compliance with the requirements for forfeiture of the contract if less than 40% of payments and less than 48 monthly payments have been paid, and you secure evidence that the purchaser under the contract is no longer in possession of the land, or (2) you secure an affidavit from the seller and trustee showing compliance with the requirements for a public sale if more than 40% of payments or 48 monthly payments have been made, and you secure a deed from the seller under the contract (who has record title), and you verify the purchaser under the contract is no longer in possession of the land.

INSURANCE REGULATIONS

Privacy Duties of Insurer and New Regulations - SB 712 (effective 6/14/01)
This bill adds new Chapter 28A, Insurance Code, which requires insurers and other entities regulated by the Texas Department of Insurance to comply with requirements of federal law on privacy and requires the commissioner of insurance to adopt rules consistent with the federal requirements, based on the NAIC (National Association of Insurance Commissioners) privacy model regulations. The Commissioner adopted emergency privacy regulations on July 12, 2001. Our bulletin NL0000103, dated May 22, 2001, complies with these regulations.

Surveys and Area and Boundary Coverage - SB 1707 (effective 6/13/01)
This bill adds new Article 9.07C, Insurance Code, relating to "area and boundary" coverage. This new Article states that the commissioner may adopt rules allowing a title insurance company to accept an existing real property survey and not require a new survey when providing area and boundary coverage if the title insurance company is willing to accept evidence of an existing real property survey, and an affidavit verifying the existing survey, as prescribed by the commissioner, notwithstanding the age of the survey or the identity of the person for whom the survey was prepared. A title insurance company may not discriminate in providing area and boundary coverage in connection with residential real property solely because the real property is platted or unplatted; or a municipality did not accept a subdivision plat in relation to the real property before September 1, 1975. A title insurance company may not require an indemnity from a seller, buyer, borrower, or lender to provide area and boundary coverage.

Company Policy: you may accept an existing survey of any date prepared for a prior or current owner, if you secure the affidavit available through the references section at the end of this bulletin. If the size of the transaction requires an over-limits approval by a Stewart manager or underwriter, also secure approval from our personnel.

NOTE: If you wish to read a more detailed discussion of Texas Legislation, please visit http://www.reprofile.com/rep/ and then select "Articles of Interest", and choose the article "Texas Legislation 2001." Other Articles of interest include "Curing Title Defects in Texas" by Jim Gosdin, which discusses many topics formerly discussed in the Texas Examiner's Manual, "Fee Attorneys and Ethical Considerations" by John Rothermel, and "What You Need to Know About Conservation Easements" by Edward D. Hellewell.