From clean transactions to intense litigation, The Weaver Law Firm protects your interests in every aspect of real estate law.

Legal Support With Executory Contracts

Executory contracts include any real estate transaction that defers material action by either party into the future. Any contract for deed, lease option, or purchase option longer than 180 days is defined by the Texas Property Code as an executory contract.

Perhaps the concept is most easily explained in contrast to a traditional real estate purchase contract. In a typical purchase, the buyer and seller enter into a contract for sale, and the buyer is generally obligated to complete its purchase of the property. However, under an executory contract, the buyer has the right, but not the obligation, to complete the purchase.

The rules governing executory contracts for the purchase of residential property and lots measuring one acre or less are primarily found in Subchapter D, Sections § 5.061 et seq. of the Property Code. The rules in these sections, and thus the rules discussed in this article, do not apply to executory contracts that provide for the delivery of a deed from the seller to the buyer within 180 days.

Rent to Own – Options Combined with a Residential Lease Agreement

Generally, an option to purchase real property that includes or is combined or executed concurrently with a residential lease agreement, together with the lease, is considered an executory contract for the conveyance of real property. Options that are not combined with a residential lease and options on commercial property do not qualify as executory contracts and therefore are not governed by the rules described in this article.

Oral Agreements Prohibited – Must Be in Writing

The Property Code explicitly requires that an executory contract be in writing and signed by the person to be bound (or that person’s representative) in order to be enforceable. Any oral agreement that does not meet this requirement will be unenforceable. The Property Code requires the seller to include a notice to this effect in the contract. The seller’s failure to provide this notice is a “false, misleading, or deceptive act or practice” under the Texas Deceptive Trade Practices Act (DTPA) and allows the buyer to cancel and rescind the contract.

Requirements for Validity

Before the buyer signs an executory contract, the Property Code requires that the seller provide a number of documents and disclosures to the buyer:

  1. a new survey within the past year or a plat of the current survey;
  2. a copy of all liens, restrictive covenants, easements affecting title to the property;
  3. a written notice informing the buyer of the condition of the property, executed by both parties;
  4. if the property is not in a recorded subdivision, a disclosure stating that utilities may not be available to the property until the subdivision is recorded;
  5. if the seller advertises property for sale under an executory contract, a disclosure of information regarding the availability of water, sewer, and electrical services;
  6. a tax certificate from the collector for each taxing unit that collects taxes due on the property; and
  7. a copy of any insurance policy, binder, or other evidence relating to the property that indicates the name of the insurer and insured, a description of the property, and the policy amount.

Penalties for Seller’s Failure to Provide Documents and Disclosures

The Property Code levies heavy penalties on any seller who fails to provide the above required information prior to the buyer signing the executory contract. It defines such a failure as a “false, misleading, or deceptive act or practice” under the Texas Deceptive Trade Practices Act, which allows the buyer to recover treble damages. Additionally, the Property Code permits the buyer to cancel and rescind the executory contract and receive a full refund of all payments made to the seller.

Buyer’s Cancellation and Refund of an Executory Contract

A buyer’s right to cancel and rescind an executory contract does not mean that a buyer can simply demand all of his money back and leave the seller empty-handed. “While the buyer remains entitled to ‘a full refund of all payments made to the seller,’ cancellation and rescission of a contract also requires that the buyer restore to the seller the value of the buyer’s occupation of the property.” Rescission requires mutual restoration and accounting. “Otherwise, the buyer would receive a windfall inconsistent with the general nature of Subchapter D.”

Buyer’s Right to Cancel Within 14 Days for Any Reason

The Property Code also allows the buyer to cancel and rescind an executory contract for any reason within 14 days of execution by delivering signed written notice to the seller by certified or registered mail, return receipt requested, or in person. The seller is required to include a disclosure of the buyer’s right to cancel in the executory contract and provide a notice of cancellation form when the buyer signs.

Seller’s Recording Requirement

On or before the 30th day after the parties sign the executory contract, the seller must record in the real property records of the county in which the property is located the executory contract and the attached disclosure statement required by Section 5.069. If the executory contract is terminated for any reason, the Property Code also requires that the seller record the instrument that terminates the contract.

A recorded executory contract is considered to be the same as a deed with a vendor’s lien for the amount of the unpaid contract price, less any lawful deductions. A general warranty is implied unless otherwise limited by the executory contract.

Transfer of Legal Title After Final Payment

If the executory contract is neither recorded nor converted by the buyer into recorded, legal title (as explained below), the seller must instead transfer recorded, legal title to the buyer within 30 days of the date the seller receives the final payment due under the executory contract.

Conversion of an Executory Contract into Legal Title

A buyer may, “at any time,” to convert the buyer’s interest in property under an executory contract into recorded, legal title by either paying the balance due under the executory contract or delivering a promissory note for the balance to the seller. If the buyer pays the remaining balance, the seller must transfer recorded, legal title to the buyer within 30 days. Alternatively, if the buyer delivers a promissory note, the Property Code requires that the buyer also execute a deed of trust and the seller execute a deed conveying recorded, legal title to the buyer.

Seller’s Termination of an Executory Contract

A seller may rescind an unrecorded executory contract and enforce the remedy of forfeiture and acceleration (eviction) against a buyer in default under the contract. However, the seller must give the buyer notice and an opportunity to cure the buyer’s default within 30 days. The seller may not enforce this remedy after the contract has been recorded.

The “40 or 48 Rule” – Requires Foreclosure Instead of Eviction

If the buyer has paid 40% or more of the purchase price, or the equivalent of 48 monthly payments, then the seller must give the buyer a 60-day notice to cure its default instead of the above-mentioned 30 days. If the buyer fails to cure its default within 60 days, the seller must then conduct a traditional foreclose (instead of an eviction) to regain title.


The Property Code imposes harsh sanctions on sellers of residential property who fail to navigate the technical complexities of Subchapter D. The rules require numerous notices and disclosures and, in many instances, impose DTPA treble damages (three times the amount of actual damages) on sellers who make simple mistakes. These penalties are imposed as a means to dissuade would-be sellers otherwise seeking to take advantage of uninformed buyers by evicting them for minor technical defaults and retaining their payments.

Our real estate attorneys have experience with all issues related to executory contracts. We provide counsel to both buyers and sellers of real property and are aware of the pitfalls that endanger both parties when executory contracts are used for the transfer of real estate.

If you are engaged in a serious dispute related to a real estate transaction or require the assistance of counsel in reviewing and advising you on your real estate contracts and transactional documents, call us at 713-454-7875 or email us your concerns.

Awards & Recognition

Avvo Rating 10.0 | Superb
Houstonia | Top Lawyers

I have used Mr. Weaver on two occasions. The first case was a rather complicated financial real estate deal gone bad with a former partner. Through his dedication, he accomplished my primary goal and my secondary goal. He took my case to trial and won. I recommend him to all of those who need representation on such issues. Additionally, he also was a kind and understanding individual.

Houston, Texas

When my husband and I decided to expand our business and create a new charity organization in Houston, we sought out an attorney who was not only professional, knowledgeable, and timely, but also personable and accessible. Attorney Richard Weaver has exceeded our expectations in all of the categories that were important to us. It is so refreshing to have someone who listens and gives honest advice on how to conduct our business and personal affairs. Mr. Weaver has been with us every step of the way. He was there with us in the beginning stages and gave us advice on everything from becoming incorporated to website content! I love his attention to detail and ability to listen. When my father passed away in 2010, he was right there to walk us through the probate of his will. I felt an immediate ease once I placed those documents in Richard's hands because I knew he'd take care of it all. In all, we will be clients of Richard's for life because we never think twice of who we need to call when we need legal advice and/or services. We consider him a part of both our business and family because he has proven to be trustworthy and dependable. Thanks so much Richard for being more that we could've ever hoped for in an attorney!

Rodney Hampton (Super Bowl Champion, Former New York Giants Running Back)
& Andetria Hampton

Richard and The Weaver Law Firm have been very committed to seeing our case through to success. His diligence in discovery and superior litigation skills helped obtain a favorable award and a very favorable judgment. It's never a pleasant experience to be sued, but we sued back and won. We found a trustworthy attorney and a good friend throughout the experience.

Thai Klam
Remax 360

I would like to thank The Weaver Law Firm. After I was injured from a consumer product, The Weaver Law Firm helped me get compensation I deserved. I was very pleased with the quality, attentiveness and responsiveness of their services. I would gladly recommend this law firm to anyone who has a problem of any kind.

Kimberly Velez
Houston, Texas

It is with great pleasure that I recommend the services of The Weaver Law Firm. I have utilized the firm for over three years. Richard Weaver has provided legal representation crucial to my business. During these years, Richard has served us in various areas that include representing the company, business planning, company formation, litigation and court proceedings. He has a professional and personal commitment to my company. We consider The Weaver Law Firm an essential part of our business. It is our utmost true belief that he will provide the same high quality of service to you.

Richard Peinado, President
Peace of Mind Services, LLC
Houston, Texas

My company and I started working with the firm since the beginning of 2012. This is an honest firm, hard at work. We never had to hire a law firm prior to 2012, and we are not going anywhere else. Thank you, Richard. And thank you to all your staff for all the great help, service and attention to our needs.

Josué Munguía, President
Trinity Distribution, LLC
Humble, Texas

The Weaver Law Firm was highly professional, easy to work with and most importantly, time-sensitive to the clients' needs. During our lease negotiations, Richard Weaver was readily available and was very helpful in making progress to finalize the deal. I will recommend The Weaver Law Firm to my future clients and look forward to working with Richard again.

Richard E. Buxbaum, RADIUS Realty Advisors
Houston, Texas 77057

As a small business enterprise, it's important to have a good support network. The Weaver Law Firm is a valuable resource providing professionalism, expertise and reliability for my company. Whether it's contract review or filing with the state for corporate requirements, I know I can count on Richard and his team.

Enrique Cortez, President
Enitial Advanced Communications
San Antonio, Texas and Washington, D.C.

Richard Weaver and The Weaver Law Firm are very thorough and professional. They get the job done. I enjoy doing business with them. They explain everything in layman's terms and I would recommend this firm to anyone in the construction field. Thanks Richard!!

Terry Bynum, Owner
Able Paving
Houston, Texas 77205

My husband and I asked Richard Weaver to form a partnership agreement for a beach property when we were selling half our interest to another party. Richard did an outstanding job. He produced the necessary documents in a timely manner that thoroughly covered all aspects of our transfer of ownership. It was a pleasure to do business with such a professional and ethical firm.

Mary Ann Wosenitz
Houston, Texas

I have used The Weaver Law firm for quite some time. Richard's knowledge and experience have always helped me. He has also saved me plenty of headaches. He is always straightforward and honest. He clearly explains what my options are and always answers all my questions promptly. In the future, if I ever need someone to represent me, or advise me on my commercial lease contracts it's always going to be Richard Weaver. I always recommend his law firm to everyone I know.

Rafael Garcia, President
Sav-On Mattress Outlet LLC

Richard is a skilled, hardworking attorney who is passionate about his client's success.

Isaac W. Kyle, CEO
iCityCondo, Inc.

During the real estate boom, my wife and I invested in more than 10 houses in Houston mainly due to low entry prices and positive cash flow even though we lived in California. Naturally, we had to hire a property manager to take care of those houses for us. It was going fine for several months. But the property manager started sending money late and in the end, the property manager went in hiding after taking all of our rent income for several months. My wife and I decided to hire Richard Weaver as our lawyer after learning about his client reviews and background. At first, we did not know what to expect, but we didn't want to give up. We were not sure whether we would be able to recover anything. But Richard worked hard on our case and kept us informed during the process. Richard was wonderfully patient and understanding. Finally, to our pleasant surprise, he brought us a successful civil case when other lawyers had simply given up. His attention to detail surely helped win this case. On top of that, Richard is also very resourceful and worked within the budget we gave him. We can't say enough about the work Richard did on our behalf and highly recommend him for any real estate related legal matters.

and Hee
El Segundo, California

As a client of The Weaver Law Firm, I was extremely pleased with their services. In 2008, I sold my home in a short sell. The property transaction closed and title to the property passed to the new buyers. But the title agent/Esquire Title, LLC, failed to pay off the lien holder/lender, Wells Fargo. Evidently, Esquire initially tried to pay off the wrong lender. Before Esquire could or did pay Wells Fargo the new pay-off amount, the Texas Department of Insurance took over Esquire's operations, discontinued all residential real estate transactions being handled by Esquire, and froze Esquire's bank accounts. Thus, the funds intended to pay Wells Fargo were trapped in Esquire's bank account and never used to pay Wells Fargo. And Wells Fargo looked to me for payment. Wells Fargo sued me and the new owners of the property. After finding Mr. Weaver, he handled everything for me and kept me up to date on how the case was going. He was able to get a settlement showing that I owe nothing, which cleared me of all claims. Wells Fargo dropped their claims against me. It was reassuring to know that I had an attorney taking care of everything on my behalf. Mr. Weaver was very knowledgeable in real estate laws and looked out for my best interest. Thank you, Mr. Weaver.

Nikki Blaze
Houston, Texas

The Weaver firm efficiently handled some small business filings for me at a reasonable cost. I plan to continue to use the firm to meet my needs.

Joe Adams
Houston, Texas

Realtors are responsible for making real estate transactions run as smooth as possible, however, when there are problems, a real estate lawyer is necessary. For our family, Richard Weaver was just the lawyer for us.

I can safely say that Richard Weaver is a knowledgeable real estate lawyer from the point of drafting of the purchase agreement through and post closing.

Our issues involved environmental issues, seller disclosure and financing. Without Mr. Weaver's expertise, our situation could have been far more expensive to fix than if he had been involved post closing.

I now know that as buyers or sellers of real estate, people should consult an attorney before they sign the purchase agreement. This agreement spells out the terms of the transaction. By the time it is signed, it is often too late for the attorney to do anything about a problem with the real estate.

In our case we had already unknowingly signed a purchase agreement. Fortunately, Mr. Weaver was able to move swiftly and accurately towards resolution. He was able to lower the purchase price substantially and save us tens of thousands of dollars on the purchase of our dream home.

I liken hiring Richard Weaver to purchasing an insurance policy. When people wait until they know they need a lawyer, it is usually too late to find one. And if it isn't too late, it will usually cost much more to get a lawyer involved once the deal has gone awry. Many real estate transactions are time-sensitive and a responsive and attentive attorney can save the transaction or at least advise clients on the best options they have available.

In our specific case, we found Richard Weaver, who moved quickly and aggressively, charged fair attorney fees, and was able to make the fairest deal possible for our situation.

Believe me, in the future Mr. Weaver will review all of our real estate transactions beforehand. As a matter of fact, we found Richard Weaver to be so personable, intelligent and responsible. He is now our family attorney for all legal matters, which we may face in the future.

Jennifer Burke Tomball, Texas