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Houston Legal Blog

Exceptions to real estate AS-IS contract

Are all AS-IS contracts enforceable? 

The recognized purpose of an as-is clause in a contract for the purchase of property is to state clearly the full responsibility of the buyer to assess the bargain and to accept the risk that its assessment may be wrong. See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex. 1995). In the typical as-is clause scenario, "[t]he seller gives no assurances, express or implied, concerning the value or condition of the thing sold." Id. The as-is clause in that typical scenario negates any claim by the buyer that an action by the seller in the transaction caused damages to the buyer. See id. 

Closing on a new home is easier said than done

You've found the home of your dreams, have an accepted offer and are looking forward to the day of your closing. Even though you're on the right track, the house isn't yours until you put pen to paper and receive the keys.

Closing on a new home is easier said than done, as there are a variety of things that can go wrong before or during your closing. Here are five things to protect against:

  • Poor home inspection report: Maybe the termite inspection report shows serious damage. Or maybe the home has mold. Perhaps the foundation is cracked or the roof is leaking. You should expect some red flags on a home inspection report, but too many serious issues may give you cold feet. You want to deal with these well in advance of your closing.
  • Appraisal concerns: More specifically, the home appraises for less than what you're paying for it. For example, if you're paying $500k for the home, it should appraise for at least that amount.
  • Something is wrong with the title: Title insurance is designed to protect the buyer and lender against future problems. However, a title search before closing may bring some issues to light. These can include liens, fraud, forgery and judgments against the home.
  • Financing disappears at the last second: Even if you receive a preapproval from your lender, you could still run into financial issues before your closing. For example, if interest rates spike, it could increase your monthly payment, thus making it difficult to afford the loan. Or maybe you lose your job before closing on the home, so you don't have the income to proceed.
  • The seller wants to back out: Cold feet can come into play when buying and selling a home. If you're ready to proceed but the seller wants to stay put after agreeing to sell, you'll need to work out your differences. This can delay your closing.

Houston Swim Club Swimming Lessons Personal Injury?

The Weaver Law Firm represents a client that has filed a complaint with the Houston Police Department based on an experience at one of the Houston Swim Club locations. Law enforcement wrote up the complaint as "Indecency with a Child." The firm's client provides an opinion that the incident started when a male instructor kissed her little boy's face on more than one occasion (during a single swim lesson) when the child and the instructor were in the swimming pool together. The mother states that she was shocked and thought the behavior was extremely strange. It is our opinion that such an act is extremely inappropriate under the circumstances. The mother did not invite or welcome the man to kiss her young boy. The mother did not give him permission to kiss the boy. It is our opinion that there was no prior personal relationship between the man and the child (like a father / son relationship) that would have even triggered the kissing. It is our opinion that the male instructor is in his mid 20s.

How to effectively fight against your condo association

When you purchase a condo in Houston, you will probably have to agree to the rules and regulations of the condo association. It is not uncommon to eventually find yourself at odds with the association. For instance, you may have heard horror stories from other condo owners or homeowners about dealing with unreasonable board members or rules that seem outrageous.

While fighting with a condo association can often be difficult, it is possible to win. Here are a few tips to follow in case you ever find yourself at odds with your condo association.

Can I adversely possess property with a fence?

In a recent case, a plaintiff attempted to rely on her maintenance of a fence that was in place when the parties took ownership of the property as evidence of her open and hostile adverse possession of the property. Texas courts have repeatedly found that maintenance of a casual fence does not create a designed enclosure, nor does it begin the running of the statute of limitations for adverse possession against cotenants. "Under the applicable case law, there are two kinds of fences: "casual fences" and fences that "designedly enclose" an area. If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a "casual fence." Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant's animals within the enclosed area, generally does not change a casual fence into a designed enclosure. A claimant may so change the character of a casual fence that it becomes a designed enclosure, and evidence of such a substantial modification is sufficient to support a jury finding of adverse possession. However, we have neither been cited to nor found a case that establishes whether or when modification requires a finding of adverse possession as a matter of law." Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.1990) (quoting Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 288-89, 267 S.W.2d 781, 786 (1954)).

What is "ouster" in Texas Adverse Possession case law?

Consistently, the Courts have required that the cotenant attempting to take full ownership must prove actual or constructive ouster, or repudiation, of his or her fellow cotenants.

When can you keep a tenant's security deposit in Texas?

Rental relationships are often fraught with potential pitfalls, leading many landlords to protect themselves with extensive lease contracts. The terms of these leases typically restrict how tenants can utilize the property and also mandate the payment of a security deposit for the premises.

If your tenant is about to move out, it is common to wonder when you have the right to keep the security deposit that they paid on the property. Making a mistake could leave you vulnerable to legal action by former tenants that could hurt your reputation and cost more money than the security deposit. So, under what circumstances do you have the right to retain a security deposit?

What is the difference between Lease Listing Agent & Leasing Agent?

Just as there are two side in a real estate sales transaction, there are generally two sides represented in a leasing transaction.

Lease listing agent - a Texas Real Estate Commission (TREC) license holder who is hired to work in the best interests of a landlord and represents the landlord in the transaction

Leasing agent - a TREC license holder who earns a fee by finding a qualified applicant for a particular property and obtains a signed lease. Leasing agents represent the best interests of the prospective tenants in the transaction. By determining the wants and needs of the prospective tenants, leasing agents are charged with

* showing appropriate properties to prospects,

* interacting with the listing agent,

* presenting the application(s) to the listing agent along with all the required paperwork, and

* determining financial requirements.

Lease listing and leasing agents might use the following questions in leasing:

* Which qualifying criteria should be considered?

* Does the applicant have satisfactory leasing or mortgage history?

* Does the applicant have a satisfactory work history?

* Does the applicant have adequate income to fulfill the terms and conditions of

the lease?

While some real estate attorneys may believe that there are vast differences between the commercial and residential leasing practices, the basics of both specialties are the same. In all legal cases relating to this topic, real estate agents are required to follow the TREC Canons of Professional Ethics, which include Fidelity, Integrity, Competency, Consumer Information, Discriminatory Practices and Information About Brokerage Services. 

Trouble with your homeowner’s association? Know your rights

Living in a home that requires joining a homeowner's association can be a blessing or a curse, depending mostly on the individuals involved. Many people who participate in homeowner's associations, or HOAs, see the benefits but recognize that these organizations often give people an opportunity to create conflict over relatively small disagreements. Unfortunately, some homeowners find themselves on the wrong end of a dispute and face legal action, often over something trivial.

If your HOA threatens you with a lawsuit or claims that you violated the guidelines, it can seem like an easy thing to ignore. This is not a wise course of action, in most cases. If you do not resolve the conflict properly, it may make living in your own home difficult and uncomfortable, along with potential consequences like heavy fines.

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