Integrity Law Group PLLC

Why do you need a Texas Prenuptial Agreement?

There’s a social stigma attached to prenuptial agreements. Sometimes happy couples think that they don’t need one because they trust one another and would never plan on getting a divorce. However, a prenuptial agreement is similar to an insurance policy, we all have one, and we hope not to have to use it, but in any event, if something bad happens, we have it to take care of us. Similarly, we get married in hopes of staying with our partners forever, but things change, people change and we want to be prepared for those situations. 

In fact, a prenuptial agreement can make a relationship stronger because it requires couples to talk about hard issues like their finances and estates.

A prenuptial agreement is a contract entered into by partners before they become spouses. Although we know them as prenuptial agreements, Texas recognizes them under the Texas Uniform Premarital Agreement Act or the Texas Family Code as a premarital agreement. In Texas a premarital agreement can include terms regarding rights and obligations regarding property and disposition of property in the event of divorce. In addition to that a prenuptial agreement can lay out other terms between you and your partner such as: 

  1. Creation and utilization of a joint bank account, 
  2. Dispute resolution methods (such as marriage counseling or mediation), and 
  3. Confirmation and characterization of separate property. 

There are a few requirements to ensure that a prenuptial agreement is enforceable in Texas. For instance, the agreements must be in writing and signed by the parties. Generally, both partners will have an attorney represent them and review the agreement to ensure that they are each signing the agreement knowingly and voluntarily. Additionally, the agreement may have the parties exchange inventories or understand the assets and liabilities each are bringing with them into the marriage. Lastly, the agreement must not violate public policy, implicate criminal culpability or be unconscionable. 
If you already have an agreement and would like it reviewed by an experienced family law and real estate attorney, contact our office. A married couple may jointly amend or terminate their current agreement and enter into a new agreement. Or, if you do not have anything in place but are interested in inquiring more about premarital agreement, schedule a free consultation here.

The Difference between Community Property vs. Separate Property in Texas

Most individuals don’t consider the difference between community property and separate property until they are facing a divorce. At Walter & Truong PLLC we educate our clients on the importance of how property is characterized in the state of Texas because Texas is one of a few  community property states. Upon divorce in Texas all community property is subject to division by a just and right manner. However, a court may not divide a person’s separate property. Therefore, understanding the definition and how property is characterized in Texas is important. 

The Texas Family Code Chapter 3 defines separate property as: 

SEPARATE PROPERTY.  A spouse’s separate property consists of:

(1)  the property owned or claimed by the spouse before marriage;

(2)  the property acquired by the spouse during marriage by gift, devise, or descent;  and

(3)  the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

On the other hand, community property is defined as: 

COMMUNITY PROPERTY.  Community property consists of the property, other than separate property, acquired by either spouse during marriage.

In Texas, there is a presumption under the Texas Family Code that all property acquired during the marriage is presumed to be community property unless proven otherwise by clear and convincing evidence. 

PRESUMPTION OF COMMUNITY PROPERTY.  

(a)  Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

(b)  The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

Some examples of community property assets include: 

  • Money, 
  • Stocks, 
  • Retirement accounts (such as 401(k)s, IRAs, etc.) 
  • Real estate, and 
  • Cars. 

During a divorce if one spouse is claiming that a particular asset should be characterized as separate property, they have the burden of proof. This can typically be proven by showing when the property was received by them through a recorded title (before marriage), or that the asset was a gift or inheritance (through a properly probated will). 

One of the many common mistakes that are made is that if an asset is titled in your name separately that it belongs solely to you. This is oftentimes incorrectly assumed because the Texas Family Code presumes that any property possessed by the parties during or on the dissolution of marriage is community property. As such, a court may conduct its due diligence and determine that an asset titled in one party’s name is in fact characterized as community property. It is not the end of the world and an experienced attorney with a background in real estate and family law can assist you. However, we believe that it is best to take precautions and be proactive rather than reactive. So, the best plan of action is to discuss a prenuptial agreement with your significant other before tying the knot. Read more about prenuptial agreements.

Regardless of where you are in the process of your divorce, contact an attorney at our office to seek legal advice in your matter. We have experienced attorneys in real estate and family law who can help guide you through your case. 

Investor’s Guide on Becoming a Texas Residential Landlord

A key component to the buy-and-hold strategy for Texas real estate residential investors is property management. While collecting rent may seem like easy passive income, there are several Texas residential landlord tenant laws and regulations in place for landlords. As a first time landlord, investors may face uncertainty and make mistakes along the way. This guide is designed to point out key issues and considerations for a newly anointed landlord.

First, consider whether you plan on making your property a long term rental (typically 12 months) or short term rental. If you plan on the short term rental route, be sure to review your local homeowner’s association rules also known as declaration, and covenants regarding single family home dwellings. Once you have confirmed it’s acceptable, plan your rental listing platforms, tenant screening process and management process.

For long term rentals you may consider using platforms such as Zillow.com or Apartments.com for online listings. Both long term and short term rentals may be posted on social media market platforms such as Facebook. Additionally, there are short term rental platforms like VRBO or Airbnb. You may also consider listing it on your local newsletter or newspaper. Few residential landlords will also have a physical sign indicating the property is for rent. Lastly, you can go a more traditional route and find a realtor to post the listing on HAR.com for you, but they typically require a fee. On average the fee will be the same amount as the first month’s rent, but be sure to check with your local realtor or broker as each office operates differently.

Once you have a successful listing, consider your tenant screening process. We have a short and handy checklist here under our resources tab. Depending on what platforms you list on, you may be receiving calls and emails daily with potential residential tenants requesting showing or additional information and sending applications. A tip is to create a short and simple script that you can use over and over throughout the process, making it seamless each time you handle another call or email.

The screening process should include some form of credit check, background check, and identity confirmation through the application. A common application form is the Texas Realtors Residential Lease Application (TXR-2003). You should also set an income requirement (typically 3x the monthly rent) and verify the potential tenant’s ability to pay. Additionally, it is important to confirm the tenant is employed and received good referrals from previous landlords. Come up with an outline of requirements for the potential tenant to meet that ensures they have good credit history and are a responsible tenant. In the event you decline an application, you should inform the potential tenant in writing through an adverse action letter.

Once you have determined who your new tenant will be, send them a deposit to hold letter and welcome letter outlining their lease agreement start date, security deposit amount, first month’s rent and any other requirements before move in. To see a sample of a deposit to hold letter and welcome letter, subscribe to our mailing list.

Prepare the necessary documents to execute prior to the tenant moving in. These documents may include a lease, pet addendum, inspection report, community/house rules and disclosures. You may need additional documents or addendums depending on your situation.

Finally, once the documents are executed and the tenant receives the keys to the property, set up your management procedure. Consider how the tenant will pay monthly rent, such as through mailing certified funds, online payments or personal pickup/delivery of payments. Be sure to explain to your tenant how to submit a maintenance request or how to contact you in an emergency.

From there do your best to maintain a stable and productive relationship with the tenant. In the event of a lease violation or eviction, see our article on residential evictions for more information.

Landlording can be daunting for a new residential investor, so be sure to check out online resources and seek help from professionals or a mentor.

Our firm handles landlord/tenant issues for our investor clients regularly. We would be happy to help you. To speak to an attorney and learn more about our services, schedule a consultation here.

Residential Texas Evictions

An eviction is the judicial process when a landlord may remove a tenant from the premises. Although many people commonly know the term eviction, some may be unfamiliar with the legal term in the Texas Property Code, a “forcible detainer” action. There are several causes for evictions such as (1) non-payment of rent, (2) holding over after the lease term has expired, (3) violation of the lease agreement or (4) foreclosure of a property. See our foreclosure series for more information on foreclosure eviction proceedings.

Evictions are governed by Chapter 24 of the Texas Property Code and Civil Procedure Rule 500. The process starts with providing the tenant with a proper notice to vacate. Under the Property Code, a landlord is required to give at least three days’ written notice before a landlord can file the forcible detainer suit. However, a written lease may provide for a shorter or longer period of time.

After the required prescribed time is met, the landlord will file an original petition for the forcible detainer action in the justice of the peace court within the precinct where the property is located. Then, the tenant will be served with notice and a trial date will be set by the court’s clerk. At the trial, the judge will make a determination as to which party has the superior right of possession to the property and the amount of damages, such as back rent, attorney’s fees, court costs, etc.

In the event the landlord receives judgment in their favor, the landlord may file a writ of possession with the court to proceed on regaining judicial access to the property. However, a tenant may appeal the eviction decision within a certain timeframe as ordered by the court. If the tenant successfully appeals the case, the case will be appealed de novo (meaning a new case) and will be sent to the county court. Then the whole process starts over. There are certain requirements a tenant must meet if they attempt to appeal the judgment such as paying a cash bond or filing a proper pauper’s affidavit.

Whether you are a seasoned landlord or a first timer, evictions may be stressful and time consuming. Additionally, each county may have their own requirements. Reach out to an experienced Texas residential eviction attorney at Integrity Law Group PLLC to provide you with the legal advice you need to accomplish your goals.

Residential Landlord Rights and Responsibilities

Chapter 92 of the Texas Property Code governs the residential landlord tenant relationship. In addition to the Texas Property Code there are Federal rules and regulations that outline a landlord’s rights and responsibilities. In this article we outline key rights and responsibilities for Texas landlords. This is not an extensive list and landlords should always do research in their local markets to ensure that they are in compliance with all county and city regulations in addition to the items listed below.

Texas Landlord’s Duty to Repair

Subchapter B of Section 92 explains that a landlord must make a diligent effort to repair or remedy a condition when:

  • The tenant has specified the condition in a notice to the person who normally collects rent or to the place where rent is normally paid,
  • The tenant is current on rent payments when the notice is given, and
  • The condition:
  • Materially affects the health and safety of an ordinary tenant, or
  • Arises from the landlord’s failure to provide and maintain in good operating condition a device to provide hot water of a minimum of 120 degrees Fahrenheit.

The lease agreement may require that the notice be in writing and delivered in a certain manner by the tenant. However, as a practical matter, any notices between the parties should be in writing and delivered in a trackable manner or with a witness to verify delivery.

Unless a problem is caused by normal wear and tear, the landlord has no duty to repair conditions caused by:

  • The tenant,
  • A lawful occupant of the premises,
  • A member of the tenant’s family,
  • A tenant’s guest or invitee.

Texas Landlord’s Duty to Return Security Deposit

Subchapter C of Chapter 92 dictates the rules regarding security deposits. As most landlords are familiar with, a tenant may be required to pay a security deposit prior to moving into the premises. A security deposit is typically used to repair damages to the premises after a tenant moves out. A landlord may not recover changes from a security deposit for normal wear and tear, which is defined as “deterioration that results from the intended use of the dwelling.” However, normal wear and tear does not include the “deterioration that results from negligence, carelessness, accident or abuse of the premises.” Texas Property Code, Section 92.001[4]. In order to make deductions for repairs a landlord is required to give the tenant a written, itemized list of all the deductions.

According to Section 92 a landlord is required to return the security deposit 30 days after the tenant surrenders the premises. Additionally, if the landlord has made deductions from the security deposit, an accounting must also be provided. However, a tenant is required to give the landlord a written statement of the tenant’s forwarding address for purposes of refunding the security deposit. Until the forwarding address is received, the landlord has no duty to return the tenant’s security deposit or give the tenant a written description of damages and charges.

A landlord who wrongly withholds a security deposit or fails to provide a written description of the accounting may be liable to the tenant for damages.

Quiet Enjoyment

A covenant is a promise under the law. A covenant for quiet enjoyment is a promise by the landlord to the tenant that the landlord will not disturb the tenant’s quiet use and enjoyment of the property. This breach can occur when a landlord prevents a tenant from entering the property. However, landlords have the right to exclude tenants under certain circumstances, such as for bona fide repairs, construction or emergencies as long as it is in compliance with the Texas Property Code. Additionally, the landlord does not breach this covenant if the exclusion occurs due to the tenant abandoning the property.

In some instances, a landlord may be liable for constructive eviction. Constructive eviction occurs when (1)  the landlord’s contact materially and permanently interferes with the tenant’s use of the premises and (2) the tenant leaves the property because of the interference. Essentially, the landlord’s actions force the tenant to vacate the property.

However, landlords have the right to evict tenants judicially under Chapter 24 of the Texas Property Code. Or, a landlord may force tenants to leave non-judicially according to the lease. See our article on evictions.

Fair Housing Act

The Texas Department of Housing and Community Affairs (TDHCA) in conjunction with the Texas Workforce Commission regulates the Texas Fair Housing Act. The Fair Housing Act is a federal regulation. Additionally, Texas has its own fair housing policies. The Fair Housing Act prohibits a landlord from discriminating a tenant based on the seven protected classes. These classes include color, religion, race, national origin, sex, disability and familial status. Generally, the Fair Housing Act covers most housing, except (1) owner-occupied buildings with no more than four units, (2) a landlord that only has a few single-family homes that were sold or rented without the use of a broker and (3) housing operated by organizations and private clubs that limit occupancy to members.

Landlords are prohibited from the following:

  • Refusing to rent or negotiate,
  • Make housing unavailable,
  • Deny a property,
  • Set different terms, conditions or privileges,
  • Provide different housing services of facilities,
  • Deny anyone access to or membership in a facility, and
  • Advertise or make any statement that indicates a limitation or preference.

This is not an exhaustive list but is meant to give landlords an idea of what is protected under the Fair Housing Act. In the event a landlord discriminates against a tenant a tenant may file a Fair Housing Complaint, which may subject the landlord to investigations. Additionally these  violations are subject to penalties.


While this article lists key responsibilities of landlords, it is ultimately only intended to be a guide. A landlord’s responsibilities may also be designated in the lease or other local rules, regulations and ordinances. If you have questions about any of the responsibilities we discussed above or would like to know more about a Texas landlord’s rights and duties, schedule a free consultation here.

Texas Foreclosure 101 for Investors

Purchasing properties at foreclosure sales can be an opportunity for investors. Some of these properties are offered at a fraction of the market value which is one of the reasons investors are incentivized to buy. Before purchasing a property, there are several steps to consider. Here is a basic overview of the foreclosure process.  

TOP 5 DUE DILIGENCE STEPS FOR PRE-FORECLOSURE 

There are three types of foreclosures: (1) tax sale, (2) trustee sale, and (3) HOA sale. Tax sales are government lines that usually have superior priority over other liens. Trustee sales are mortgage liens. Usually, these mortgage liens have priority over HOA liens. If the HOA lien is junior to the mortgage lien, it will extinguish at the sale. Mortgage liens are generally junior to government liens, therefore, additional diligence is necessary to ensure that those liens are not on title or that you are accounting for additional costs when purchasing the property. HOA liens are junior to government liens and most mortgage liens. Before purchasing from an HOA sale, you should conduct a title search.

1.      TITLE SEARCH = When conducting a title search look for liens, release of liens, any break in chain of title, Lis Pendens and abstract judgments. If you are not familiar with the title search procedure, you should seek a professional with experience. There are many title search companies available that can help you.

2.      CONTACT TRUSTEE = Reach out to the trustee of the property. Some trustees may provide an inspection report and let you view the interior of the property. Note that trustees are not obligated to provide such reports or allow you on the property.

3.      PHYSICAL CHECK = If you have permission you should physically check the property prior to the sale or have a professional inspector. Account for costs associated with capital expenditures such as the condition of the roof, foundation, and HVAC. Also check to see if the property is in a flood zone and whether there are any environmental contaminants. Be sure to check the neighborhood and surrounding areas. *Be aware that you are not allowed onto the property without permission by an authorized representative or agent.*

4.      TENANTS OR OCCUPANTS = Tenants or occupants may be residing on the property even after you purchase the property at a foreclosure sale. The proper procedure to remove tenants or occupants from the property is an eviction proceeding.  Otherwise, you can make an arrangement to rent the property to them.

5.      FINANCIAL ANALYSIS = Make your own financial analysis for equity. This can be done in several ways. One method is to research the fair market value of the property and surrounding properties to compare that value to the estimated cost of repairs, cost of any liens, and cost of any judicial action needed for eviction.  

6.      BONUS – OTHER DUE DILIGENCE TO CONSIDER = If there is a wrongful foreclosure action related to this property, it may put you in a legal battle. Wrongful foreclosure claims may prevail when the debtor or owner is an active military member, bankruptcy action is pending, or probate is pending. Check bankruptcy twice, during your due diligence and the day of sale because last minute bankruptcies may be filed. 

Other resources: Check for environmental issues: www.tceq.state.tx.us

Every property and transaction is unique, but these tips are the top five that we recommend to you as a guideline for some of the decisions and tasks to be completed before the foreclosure sale. For questions about this or more information about foreclosure sales, please contact us.

The Day of Foreclosure

In Texas, foreclosure sales are at live auctions. Check the real property records for the list of foreclosure properties in the county you want to purchase your property. You may also find the list on your local newspaper, or the trustee’s website. In Harris County, the Daily Court Review provides a monthly list of properties.

Foreclosure sales are on the first Tuesday of each month between 10 a.m. and 4 p.m at the county court house unless specified otherwise. The constable or trustee will instruct and inform the bidders about the properties.

Depending on which county you are in, you may have to register in advance. In Harris County, bidders can register the morning prior to the auction sale, be sure to check the registration procedure for Harris County. Upon registration a number is assigned to you. The number is on a piece of paper which you will raise when you bid.

Bids usually start with the amount owed including accrued fees and other related costs. Winning bidders must provide identification name, address, taxpayer number, and photo ID and/or LLC.

Payment must be paid within a reasonable time. Generally, you pay once you win. Have the cashier’s check or certified check payable to the trustee or constable or to yourself. You can always endorse it to change the name of the beneficiary. If you are the winning bidder and cannot pay timely, you may be penalized, and the property will be rebidded.

At auctions properties are sold “as is” which means there are no warranties or guarantees. There’s no seller’s disclosures provided.  Keep in mind that after winning the bid and purchasing the property, it may take some time to receive the recorded deed from the trustee.

RESCISSION OF FORECLOSURE SALE

Rarely does a property get rescinded, however, rescission of the sale can happen within 15 days post foreclosure. Rescission occurs for several reasons, including technicalities with the foreclosure process, debtor paid prior to foreclosure, probate is pending on at least one of the property owners or borrower of the note, or property owner has a bankruptcy pending with an automatic stay prior to sale. The bidder will get their money back but the bidder can dispute the rescission within 30 days. 

REDEMPTION PERIOD

The redemption period is the time an owner can take back the property after foreclosure. Redemption period depends on the type of property and type of lien. For instance, tax liens redemption period is two years for agricultural property and homestead property. The bidder is entitled to the bid amount plus 25% on the first year and 50% on the second year of the redemption period, costs of property insurance, and required repairs and improvements. Please note that repairs and improvements must be for habitable reasons. See Texas codes, ordinances, or the lease. Other properties have 180 days and investors are only entitled to principal and premium of 25%.

Redemption period for HOA assessment liens are 180 days after the HOA sends written notice of the foreclosure sale to the owner and the lienholder. Lienholders have 90 days to redeem after the HOA sends written notice, but the prior owner has first rights. Note that HOA liens are usually subordinate to mortgages and mechanics lien, meaning these liens may still be on title, thus new owner may be liable for those liens.

POST-FORECLOSURE EVICTION

After a successful bid, the bidder receives a deed as new owner of the property. You have title and right of possession of the property and automatically become the landlord if there are tenants or occupants. To request tenants or occupants to leave, a 3-day notice to vacate sent by certified mail is required pursuant to the Texas Property Code. If the tenants or occupants have not vacated the premises, then the next step is to file an action for forcible detainer action in Justice of the Peace Court in the county and precinct where the property is located. After a successful trial and judgment, a writ of possession is requested and the constable posts a notice on the door. Then, the constable removes any occupants or tenants. This can also be done with personal property that belongs to the tenants or occupants that remain on the premises. NOTE: the tenant or occupant can appeal eviction and set a bond, delaying the eviction process.

STOPPING FORECLOSURE SALE

Property owners may attempt to stop foreclosure for several reasons. This includes disputing the amount owed, lienholder did not provide correct and/or timely notice, the foreclosure process was not properly executed. 

One judicial action is filing a temporary restraining order also known as a TRO, with a reasonable claim such as the foreclosure is wrongful, debtor has cured or can cure with sells contract or proof of payment, pending probate, pending bankruptcy, owner is an active military, or property is in a current dispute, however, title issues cannot be claimed since it does not affect foreclosure. TRO is temporary  and usually lasts only 14 days. However, it may be renewed upon a temporary or permanent injunction presented to the court. Sometimes that is enough time to stop a foreclosure and cure the defect.

Foreclosure sales can be a great opportunity to find deals. However, there are several things to consider, and this outline is meant to provide you with some food for thought. For questions about this or more information about foreclosure sales, please contact us. 

Foreclosure and Basic Law

Texas Property Code Section 51 covers foreclosure law.  The lienholder is required to provide 21-day notices of foreclosure sales of a residential homestead. This notice must also be filed with the county clerk and posted at the courthouse. The Statute of limitation is four years for lienholders to start the foreclosure process after default. After the statute of limitation expires, the lienholders cannot collect, with a few exceptions.

All lienholders must send a demand letter to debtors with the intent to foreclose on the property, the demand letter must be sent by certified mail. Debtors have 20 days to cure a homestead property, unless the deed of trust states otherwise.  If the debtor is able to cure the default then a reinstatement agreement should be executed unless the terms of the debt have been changed, such as a modification agreement or a replacement note.

If the debtor or tenant has paid more than 40% of the amount due or made 48 or more monthly payments, then pursuant to the equity protection provisions of Tex. Prop. Code Sec. 5.066, the seller or landlord must give a 60-day notice of default and opportunity to cure the default. If debt has not been cured, then the trustee may start the foreclosure process.

All superior liens will extinguish subordinate liens. After the sale, any excess proceeds from the foreclosure sale may be distributed to the subordinate lien holders.

Notice must be given to the IRS and U.S. Attorney (if any) 25 days or more prior to the sale. The IRS has 120 days to redeem the property after the sale. The U.S. Attorney has 60 days.

If you are a property owner or lienholder and need assistance with the foreclosure process, be sure to review the deed of trust, note and all other relevant documents. Feel free to contact us with your real estate questions. 

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