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PROPERTY CODE

CHAPTER 5. CONVEYANCES

SUBCHAPTER D. EXECUTORY CONTRACT FOR CONVEYANCE

Section
5.061. Definition.
5.062. Applicability.
5.063. Notice.
5.064. Seller's Remedies on Default.
5.065. Right to Cure Default.
5.066. Equity Protection; Sale of Property.
5.067. Placement of Lien for Utility Service.
5.068. Foreign Language Requirement.
5.069. Seller's Disclosure of Property Condition.
5.070. Seller's Disclosure of Tax Payments and Insurance Coverage.
5.071. Seller's Disclosure of Financing Terms.
5.072. Oral Agreements Prohibited.
5.073. Contract Terms Prohibited.
5.074. Purchaser's Right to Cancel Contract Without Cause.
5.075. Purchaser's Right to Pledge Interest in Property on Contracts Entered Into Before September 1, 2001.
5.076. Recording Requirements.
5.077. Annual Accounting Statement.
5.078. Disposition of Insurance Proceeds.
5.079. Title Transfer.
5.080. Liability for Disclosures.


SUBCHAPTER D. EXECUTORY CONTRACT FOR CONVEYANCE

NOTE: SB 198, generally effective Sept. 1, 2001, substantially changed Subchapter D, adding amended versions of many provisions formerly in Subchapter E. See the note following 5.080 for details regarding how the amendments "phase-in" to apply to particular transactions and contracts.


 5.061. Definition

In this subchapter, "default" means the failure to:

    (1) make a timely payment; or
    (2) comply with a term of an executory contract.

 5.062. Applicability

(a) This subchapter applies only to a transaction involving an executory contract for conveyance of real property used or to be used as the purchaser's residence or as the residence of a person related to the purchaser within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code. For purposes of this subchapter, a lot measuring one acre or less is presumed to be residential property.

(b) This subchapter does not apply to a transaction involving the sale of state land or a sale of land by the Veterans' Land Board under an executory contract.

(c) This subchapter does not apply to an executory contract that provides for the delivery of a deed from the seller to the purchaser within 180 days of the date of the final execution of the executory contract.

(d) Section 5.066 and Sections 5.068-5.080 do not apply to a transaction involving an executory contract for conveyance if the purchaser of the property:

    (1) is related to the seller of the property within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code; and

    (2) has waived the applicability of those sections in a written agreement.


 5.063. Notice

(a) Notice under Section 5.064 must be in writing and must be delivered by registered or certified mail, return receipt requested. The notice must be conspicuous and printed in 14-point boldface type or 14-point uppercase typewritten letters, 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.

(b)  The notice must also:

    (1) identify and explain the remedy the seller intends to enforce;

    (2)  if the purchaser has failed to make a timely payment, specify:

      (A)  the delinquent amount, itemized into principal and interest;

      (B)  any additional charges claimed, such as late charges or attorney's fees; and

      (C) the period to which the delinquency and additional charges relate; and

    (3) if the purchaser has failed to comply with a term of the contract, identify the term violated and the action required to cure the violation.

(c) Notice by mail is given when it is mailed to the purchaser's residence or place of business. The affidavit of a person knowledgeable of the facts to the effect that notice was given is prima facie evidence of notice in an action involving a subsequent bona fide purchaser for value if the purchaser is not in possession of the real property and if the stated time to avoid the forfeiture has expired. A bona fide subsequent purchaser for value who relies upon the affidavit under this subsection shall take title free and clear of the contract.


 5.064. Seller's Remedies on Default

A seller may enforce the remedy of rescission or of forfeiture and acceleration against a purchaser in default under an executory contract for conveyance of real property only if:

(1) the seller notifies the purchaser of:

    (A) the seller's intent to enforce a remedy under this section; and

    (B) the purchaser's right to cure the default within the 30-day period described by Section 5.065;

(2) the purchaser fails to cure the default within the 30-day period described by Section 5.065; and

(3) Section 5.066 does not apply.

Amended by SB 1527, eff. Sept. 1, 2003. See note under § 5.065 regarding applicability of change made by SB 1527 reducing the cure period from 60 days to 30 days.


 5.065. Right to Cure Default

Notwithstanding an agreement to the contrary, a purchaser in default under an executory contract for the conveyance of real property may avoid the enforcement of a remedy described by Section 5.064 by complying with the terms of the contract on or before the 30th day after the date notice is given under that section.

Amended by SB 1527, eff. Sept. 1, 2003.

NOTE: The change in law made by SB 1527, reducing from 60 days to 30 days the time period allowed for curing a default, applies only to an executory contract for conveyance signed on or after September 1, 2003. An executory contract for conveyance signed before September 1, 2003, is covered by the law in effect when the contract was signed, and the former law is continued in effect for that purpose. From Sept. 1, 1969, through August 31, 2001, the former law provided for a cure period ranging from 15 to 60 days (depending upon what portion of the purchase price had been paid). From Sept. 1, 2001, through August 31, 2003, former 5.065 provided for a cure period of 60 days. Note also that SB 1527 does not change the requirement in Property Code 5.066 that when the purchaser has paid 40 percent or more of the amount due or the equivalent of 48 monthly payments, the purchaser gets a 60-day period to cure a default followed by a foreclosure-like sale.


 5.066. Equity Protection; Sale of Property

(a) If a purchaser defaults after the purchaser has paid 40 percent or more of the amount due or the equivalent of 48 monthly payments under the executory contract, the seller is granted the power to sell, through a trustee designated by the seller, the purchaser's interest in the property as provided by this section. The seller may not enforce the remedy of rescission or of forfeiture and acceleration.

(b) The seller shall notify a purchaser of a default under the contract and allow the purchaser at least 60 days after the date notice is given to cure the default. The notice must be provided as prescribed by Section 5.063 except that 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.

(c) The trustee or a substitute trustee designated by the seller must post, file, and serve a notice of sale and the county clerk shall record and maintain the notice of sale as prescribed by Section 51.002. A notice of sale is not valid unless it is given after the period to cure has expired.

(d) The trustee or a substitute trustee designated by the seller must conduct the sale as prescribed by Section 51.002. The seller must:

    (1) convey to a purchaser at a sale conducted under this section fee simple title to the real property; and

    (2) warrant that the property is free from any encumbrance.

(e) The remaining balance of the amount due under the executory contract is the debt for purposes of a sale under this section. If the proceeds of the sale exceed the debt amount, the seller shall disburse the excess funds to the purchaser under the executory contract. If the proceeds of the sale are insufficient to extinguish the debt amount, the seller's right to recover the resulting deficiency is subject to Sections 51.003, 51.004, and 51.005 unless a provision of the executory contract releases the purchaser under the contract from liability.

(f) The affidavit of a person knowledgeable of the facts that states that the notice was given and the sale was conducted as provided by this section is prima facie evidence of those facts. A purchaser for value who relies on an affidavit under this subsection acquires title to the property free and clear of the executory contract.

(g) If a purchaser defaults before the purchaser has paid 40 percent of the amount due or the equivalent of 48 monthly payments under the executory contract, the seller may enforce the remedy of rescission or of forfeiture and acceleration of the indebtedness if the seller complies with the notice requirements of Sections 5.063 and 5.064.


 5.067. Placement of Lien for Utility Service

Notwithstanding any terms of a contract to the contrary, the placement of a lien for the reasonable value of improvements to residential real estate for purposes of providing utility service to the property shall not constitute a default under the terms of an executory contract for the purchase of the real property.


 5.068. Foreign Language Requirement

If the negotiations that precede the execution of an executory contract are conducted primarily in a language other than English, the seller shall provide a copy in that language of all written documents relating to the transaction, including the contract, disclosure notices, annual accounting statements, and a notice of default required by this subchapter.


 5.069. Seller's Disclosure of Property Condition

 (a) Before an executory contract is signed by the purchaser, the seller shall provide the purchaser with:

    (1) a survey, which was completed within the past year, or plat of a current survey of the real property;

    (2) a legible copy of any document that describes an encumbrance or other claim, including a restrictive covenant or easement, that affects title to the real property; and

    (3) a written notice, which must be attached to the contract, informing the purchaser of the condition of the property that must, at a minimum, be executed by the seller and purchaser and read substantially similar to the following:

WARNING

IF ANY OF THE ITEMS BELOW HAVE NOT BEEN CHECKED, YOU MAY NOT BE ABLE TO LIVE ON THE PROPERTY.

SELLER'S DISCLOSURE NOTICE CONCERNING THE PROPERTY AT (street address or legal description and city) THIS DOCUMENT STATES CERTAIN APPLICABLE FACTS ABOUT THE PROPERTY YOU ARE CONSIDERING PURCHASING. CHECK ALL THE ITEMS THAT ARE APPLICABLE OR TRUE:

____ The property is in a recorded subdivision.
____ The property has water service that provides potable water.
____ The property has sewer service.
____ The property has been approved by the appropriate municipal, county, or state agency for installation of a septic system.
____ The property has electric service.
____ The property is not in a floodplain.
____ The roads to the boundaries of the property are paved and maintained by:

    ____ the seller;
    ____ the owner of the property on which the road exists;
    ____ the municipality;
    ____ the county; or
    ____ the state.

____ No individual or entity other than the seller:
    (1)owns the property;
    (2)has a claim of ownership to the property; or
    (3)has an interest in the property.

____ No individual or entity has a lien filed against the property.
____ There are no restrictive covenants, easements, or other title exceptions or encumbrances that prohibit construction of a house on the property.

NOTICE: SELLER ADVISES PURCHASER TO:

(1) OBTAIN A TITLE ABSTRACT OR TITLE COMMITMENT COVERING THE PROPERTY AND HAVE THE ABSTRACT OR COMMITMENT REVIEWED BY AN ATTORNEY BEFORE SIGNING A CONTRACT OF THIS TYPE; AND
(2) PURCHASE AN OWNER'S POLICY OF TITLE INSURANCE COVERING THE PROPERTY.

__________  _____________________________

 (Date)       (Signature of Seller)

__________  _____________________________

 (Date)       (Signature of Purchaser)

 (b) If the property is not located in a recorded subdivision, the seller shall provide the purchaser with a separate disclosure form stating that utilities may not be available to the property until the subdivision is recorded as required by law.

 (c) If the seller advertises property for sale under an executory contract, the advertisement must disclose information regarding the availability of water, sewer, and electric service.  (d) The seller's failure to provide information required by this section:

    (1)  is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and is actionable in a public or private suit brought under Subchapter E, Chapter 17, Business & Commerce Code; and

    (2)  entitles the purchaser to cancel and rescind the executory contract and receive a full refund of all payments made to the seller.

 (e) Subsection (d) does not limit the purchaser's remedy against the seller for other false, misleading, or deceptive acts or practices actionable in a suit brought under Subchapter E, Chapter 17, Business & Commerce Code.


 5.070. Seller's Disclosure of Tax Payments and Insurance Coverage

(a) Before an executory contract is signed by the purchaser, the seller shall provide the purchaser with:

    (1) a tax certificate from the collector for each taxing unit that collects taxes due on the property as provided by Section 31.08, Tax Code; and
    (2) a legible copy of any insurance policy, binder, or other evidence relating to the property that indicates:
      (A) the name of the insurer and the insured;
      (B)  a description of the property insured; and
      (C) the amount for which the property is insured.

(b) The seller's failure to provide information required by this section:

    (1) is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and is actionable in a public or private suit brought under Subchapter E, Chapter 17, Business & Commerce Code; and
    (2) entitles the purchaser to cancel and rescind the executory contract and receive a full refund of all payments made to the seller.

(c) Subsection (b) does not limit the purchaser's remedy against the seller for other false, misleading, or deceptive acts or practices actionable in a suit brought under Subchapter E, Chapter 17, Business & Commerce Code.


 5.071. Seller's Disclosure of Financing Terms

Before an executory contract is signed by the purchaser, the seller shall provide to the purchaser a written statement that specifies:

    (1) the purchase price of the property;
    (2) the interest rate charged under the contract;
    (3) the dollar amount, or an estimate of the dollar amount if the interest rate is variable, of the interest charged for the term of the contract;
    (4) the total amount of principal and interest to be paid under the contract;
    (5) the late charge, if any, that may be assessed under the contract; and
    (6) the fact that the seller may not charge a prepayment penalty or any similar fee if the purchaser elects to pay the entire amount due under the contract before the scheduled payment date under the contract.

 5.072. Oral Agreements Prohibited

(a) An executory contract is not enforceable unless the contract is in writing and signed by the party to be bound or by that party's authorized representative.

(b) The rights and obligations of the parties to a contract are determined solely from the written contract, and any prior oral agreements between the parties are superseded by and merged into the contract.

(c) An executory contract may not be varied by any oral agreements or discussions that occur before or contemporaneously with the execution of the contract.

(d) The seller shall include in a separate document or in a provision of the contract a statement printed in 14-point boldfaced type or 14-point uppercase typewritten letters that reads substantially similar to the following:

THIS EXECUTORY CONTRACT REPRESENTS THE FINAL AGREEMENT BETWEEN THE SELLER AND PURCHASER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

__________  _____________________________

 (Date)       (Signature of Seller)

__________  _____________________________

 (Date)       (Signature of Purchaser)

(e) The seller's failure to provide the notice required by this section:

    (1) is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and is actionable in a public or private suit brought under Subchapter E, Chapter 17, Business & Commerce Code; and
    (2) entitles the purchaser to cancel and rescind the executory contract and receive a full refund of all payments made to the seller.

(f) Subsection (e) does not limit the purchaser's remedy against the seller for other false, misleading, or deceptive acts or practices actionable in a suit brought under Subchapter E, Chapter 17, Business & Commerce Code.


 5.073. Contract Terms Prohibited

A seller may not include as a term of the executory contract a provision that:

    (1) imposes an additional late-payment fee that exceeds the lesser of:
      (A) eight percent of the monthly payment under the contract; or
      (B) the actual administrative cost of processing the late payment;

    (2) prohibits the purchaser from pledging the purchaser's interest in the property as security to obtain a loan to place improvements, including utility improvements or fire protection improvements, on the property; or

    (3) imposes a prepayment penalty or any similar fee if the purchaser elects to pay the entire amount due under the contract before the scheduled payment date under the contract.


 5.074. Purchaser's Right to Cancel Contract Without Cause

(a) In addition to other rights or remedies provided by law, the purchaser may cancel and rescind an executory contract for any reason by sending by telegram or certified or registered mail, return receipt requested, or by delivering in person a signed, written notice of cancellation to the seller not later than the 14th day after the date of the contract.

(b) If the purchaser cancels the contract as provided by Subsection (a), the seller shall, not later than the 10th day after the date the seller receives the purchaser's notice of cancellation:

    (1)  return to the purchaser the executed contract and any property exchanged or payments made by the purchaser under the contract; and
    (2)  cancel any security interest arising out of the contract.

(c) The seller shall include in immediate proximity to the space reserved in the executory contract for the purchaser's signature a statement printed in 14-point boldface type or 14-point uppercase typewritten letters that reads substantially similar to the following:

YOU, THE PURCHASER, MAY CANCEL THIS CONTRACT AT ANY TIME DURING THE NEXT TWO WEEKS. THE DEADLINE FOR CANCELING THE CONTRACT IS (date). THE ATTACHED NOTICE OF CANCELLATION EXPLAINS THIS RIGHT.

(d) The seller shall provide a notice of cancellation form to the purchaser at the time the purchaser signs the executory contract that is printed in 14-point boldface type or 14-point uppercase typewritten letters and that reads substantially similar to the following:

NOTICE OF CANCELLATION

(date of contract)

YOU MAY CANCEL THE EXECUTORY CONTRACT FOR ANY REASON WITHOUT ANY PENALTY OR OBLIGATION BY (date).
(1) YOU MUST SEND BY TELEGRAM OR CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OR DELIVER IN PERSON A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE TO (Name of Seller) AT (Seller's Address) BY (date).
(2) THE SELLER SHALL, NOT LATER THAN THE 10TH DAY AFTER THE DATE THE SELLER RECEIVES YOUR CANCELLATION NOTICE:

    (A) RETURN THE EXECUTED CONTRACT AND ANY PROPERTY EXCHANGED OR PAYMENTS MADE BY YOU UNDER THE CONTRACT; AND
    (B) CANCEL ANY SECURITY INTEREST ARISING OUT OF THE CONTRACT.

I ACKNOWLEDGE RECEIPT OF THIS NOTICE OF CANCELLATION FORM.

__________  _____________________________

 (Date)       (Purchaser's Signature)

I HEREBY CANCEL THIS CONTRACT.

__________  _____________________________

 (Date)       (Purchaser's Signature)

 (e)The seller may not request the purchaser to sign a waiver of receipt of the notice of cancellation form required by this section.


 5.075. Purchaser's Right to Pledge Interest in Property on Contracts Entered Into Before September 1, 2001

(a) On an executory contract entered into before September 1, 2001, a purchaser may pledge the interest in the property, which accrues pursuant to Section 5.066, only to obtain a loan for improving the safety of the property or any improvements on the property.

(b) Loans that improve the safety of the property and improvements on the property include loans for:


    (1) improving or connecting a residence to water service;
    (2) improving or connecting a residence to a wastewater system;
    (3) building or improving a septic system;
    (4) structural improvements in the residence; and
    (5) improved fire protection.

 5.076.  Recording Requirements

(a) Except as provided by Subsection (b), the seller shall record the executory contract, including the attached disclosure statement required by Section 5.069, as prescribed by Title 3 on or before the 30th day after the date the contract is executed.

(b) Section 12.002(c) does not apply to an executory contract filed for record under this section.

(c) If the executory contract is terminated for any reason, the seller shall record the instrument that terminates the contract.

(d) The county clerk shall collect the filing fee prescribed by Section 118.011, Local Government Code.


 5.077. Annual Accounting Statement

(a) The seller shall provide the purchaser with an annual statement in January of each year for the term of the executory contract. If the seller mails the statement to the purchaser, the statement must be postmarked not later than January 31.

(b) The statement must include the following information:

    (1) the amount paid under the contract;
    (2) the remaining amount owed under the contract;
    (3) the number of payments remaining under the contract;
    (4) the amounts paid to taxing authorities on the purchaser's behalf if collected by the seller;
    (5) the amounts paid to insure the property on the purchaser's behalf if collected by the seller;
    (6) if the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property; and
    (7) if the seller has changed insurance coverage, a legible copy of the current policy, binder, or other evidence that satisfies the requirements of Section 5.070(a)(2).

(c) A seller who fails to comply with Subsection (a) is liable to the purchaser for:

    (1) liquidated damages in the amount of $250 a day for each day after January 31 that the seller fails to provide the purchaser with the statement; and

    (2) reasonable attorney's fees.


 5.078. Disposition of Insurance Proceeds

(a) The named insured under an insurance policy, binder, or other coverage relating to property subject to an executory contract for the conveyance of real property shall inform the insurer, not later than the 10th day after the date the coverage is obtained or the contract executed, whichever is later, of:

    (1) the executory contract for conveyance and the term of the contract; and

    (2) the name and address of the other party to the contract.

(b) An insurer who disburses proceeds under an insurance policy, binder, or other coverage relating to property that has been damaged shall issue the proceeds jointly to the purchaser and the seller designated in the contract.

(c) If proceeds under an insurance policy, binder, or other coverage are disbursed, the purchaser and seller shall ensure that the proceeds are used to repair, remedy, or improve the condition on the property.

(d) The failure of a seller or purchaser to comply with Subsection (c) is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code, and is actionable in a public or private suit brought under Subchapter E, Chapter 17, Business & Commerce Code.

(e) Subsection (d) does not limit either party's remedy for other false, misleading, or deceptive acts or practices actionable in a suit brought under Subchapter E, Chapter 17, Business & Commerce Code.


 5.079. Title Transfer

(a) The seller shall transfer recorded, legal title of the property covered by the executory contract to the purchaser not later than the 30th day after the date the seller receives the purchaser's final payment due under the contract.

(b) A seller who violates Subsection (a) is liable to the purchaser for:

    (1) liquidated damages in the amount of:
      (A)  $250 a day for each day the seller fails to transfer the title to the purchaser during the period that begins the 31st day and ends the 90th day after the date the seller receives the purchaser's final payment due under the contract; and
      (B)  $500 a day for each day the seller fails to transfer title to the purchaser after the 90th day after the date the seller receives the purchaser's final payment due under the contract; and

    (2) reasonable attorney's fees.

(c) If a person to whom a seller's property interest passes by will or intestate succession is required to obtain a court order to clarify the person's status as an heir or to clarify the status of the seller or the property before the person may convey good and indefeasible title to the property, the court in which the action is pending may waive payment of the liquidated damages and attorney's fees under Subsection (b) if the court finds that the person is pursuing the action to establish good and indefeasible title with reasonable diligence.

(d) In this section, "seller" includes a successor, assignee, personal representative, executor, or administrator of the seller.


 5.080. Liability for Disclosures

For purposes of this subchapter, a disclosure required by this subchapter that is made by a seller's agent is a disclosure made by the seller.

NOTE ON APPLICABILITY OF SUBCHAPTER D OF CHAPTER 5, TEXAS PROPERTY CODE:

Under Senate Bill 198, generally effective Sept. 1, 2001, Subchapter D incorporates amended versions of a number of provisions regarding executory contracts that were initially adopted in 1995 as Subchapter E of Chapter 5 of the Texas Property Code. Under former 5.091, Subchapter E applied in Texas counties within 200 miles of the Texas-Mexico border having low per-capita income and a high unemployment rate. SB 198 makes the new Subchapter D sections applicable statewide. The following provisions from Section 3 of SB 198 clarify how the 2001 amendments "phase in" to apply to particular transactions and contracts.

    (a) This Act takes effect September 1, 2001.

    (b) The changes in law made by Sections 5.063, 5.064, 5.065, and 5.066, Property Code, as amended and redesignated by this Act, apply only to a purchaser who defaults under Subchapter D, Chapter 5, Property Code, as amended by this Act, on or after September 1, 2001, regardless of when the contract was entered into. A purchaser who is in default before September 1, 2001, is covered by the law in effect when the default occurred, and the former law is continued in effect for that purpose.

    (c) The changes in law made by Sections 5.068 and 5.069, Property Code, as amended and redesignated by this Act, and Section 5.070, Property Code, as added by this Act, apply only to transactions involving executory contracts for conveyance for which negotiations begin on or after September 1, 2001. For purposes of this subsection, negotiations begin on the date an offer to enter into an executory contract for conveyance is made. Transactions involving executory contracts for conveyance for which negotiations begin before September 1, 2001, are covered by the law in effect when the negotiations began, and the former law is continued in effect for that purpose.

    (d) The change in law made by the amendment of Section 5.091 and the repeal of Section 5.092, Property Code, by this Act and the application of Section 5.071, Property Code, as amended and redesignated by this Act, and Section 5.080, Property Code, as redesignated by this Act, applies only to transactions involving executory contracts for conveyance for which negotiations begin on or after September 1, 2001. For purposes of this subsection, negotiations begin on the date an offer to enter into an executory contract for conveyance is made.

    (e) The change in law made by the amendment of Section 5.091 and the repeal of Section 5.092, Property Code, by this Act and the application of Section 5.072, Property Code, as added by this Act, Section 5.074, Property Code, as redesignated by this Act, and Sections 5.073 and 5.076, Property Code, as amended and redesignated by this Act, applies only to a contract entered into on or after September 1, 2001.

    (f) The change in law made by the amendment of Section 5.091 and the repeal of Section 5.092, Property Code, by this Act and the application of Section 5.075, Property Code, as amended and redesignated by this Act, applies to a purchaser on or after September 1, 2001, who accrues interest as provided by that section regardless of when the interest accrued.

    (g) The changes in law made by the amendment of Section 5.091 and the repeal of Section 5.092, Property Code, by this Act and the application of Subsections (a) and (b), Section 5.077, Property Code, as amended and redesignated by this Act, and Subsection (a), Section 5.079, Property Code, as redesignated by this Act, apply to an executory contract on or after September 1, 2001, regardless of when the contract was entered into.

    (h) The change in law made by Subsection (c), Section 5.077, and Subsection (b), Section 5.079, Property Code, as amended and redesignated by this Act, applies only to a violation that occurs on or after September 1, 2001. A violation that occurs before September 1, 2001, is covered by the law in effect when the violation occurred, and the former law is continued in effect for that purpose.

    (i) The change in law made by Section 5.078, Property Code, as added by this Act, applies to an executory contract regardless of when the contract was entered into. A named insured who currently holds an insurance policy binder or other coverage relating to property subject to an executory contract shall notify the insurer as provided by Subsection (a), Section 5.078, Property Code, not later than January 1, 2002.


CHAPTER 12. RECORDING OF INSTRUMENTS

12.002. Subdivision Plat; Penalty

(a) The county clerk or a deputy of the clerk with whom a plat or replat of a subdivision of real property is filed for recording shall determine whether the plat or replat is required by law to be approved by a county or municipal authority or both. The clerk or deputy may not record a plat or replat unless it is approved as provided by law by the appropriate authority and unless the plat or replat has attached to it the documents required by Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if applicable. If a plat or replat does not indicate whether land covered by the plat or replat is in the extraterritorial jurisdiction of the municipality, the county clerk may require the person filing the plat or replat for recording to file with the clerk an affidavit stating that information.

(b) A person may not file for record or have recorded in the county clerk's office a plat or replat of a subdivision of real property unless it is approved as provided by law by the appropriate authority and unless the plat or replat has attached to it the documents required by Section 212.0105 or 232.023, Local Government Code, if applicable.

(c) Except as provided by Subsection (d), a person who subdivides real property may not use the subdivision's description in a deed of conveyance, a contract for a deed, or a contract of sale or other executory contract to convey that is delivered to a purchaser unless the plat or replat of the subdivision is approved and is filed for record with the county clerk of the county in which the property is located and unless the plat or replat has attached to it the documents required by Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if applicable.

(d) Except in the case of a subdivision located in a county to which Subchapter B, Chapter 232, Local Government Code, applies, Subsection (c) does not apply to using a subdivision's description in a contract to convey real property before the plat or replat of the subdivision is approved and is filed for record with the county clerk if:

    (1) the conveyance is expressly contingent on approval and recording of the final plat; and

    (2) the purchaser is not given use or occupancy of the real property conveyed before the recording of the final plat.

(e) A person may not file for record or have recorded in the county clerk's office a plat or replat of a subdivision of real property unless the plat or replat has attached to it an original tax certificate from each taxing unit with jurisdiction of the real property indicating that no delinquent ad valorem taxes are owed on the real property. This subsection does not apply if more than one person acquired the real property from a decedent under a will or by inheritance and those persons owning an undivided interest in the property obtained approval to subdivide the property to provide each person with a divided interest and a separate title to the property.

(f) A person commits an offense if the person violates Subsection (b), (c), or (e). An offense under this subsection is a misdemeanor punishable by a fine of not less than $10 or more than $1,000, by confinement in the county jail for a term not to exceed 90 days, or by both the fine andconfinement. Each violation constitutes a separate offense and also constitutes prima facie evidence of an attempt to defraud.

(g) This section does not apply to a partition by a court.

Acts 1983, 68th Leg., p. 3489, ch. 576, 1, eff. Jan. 1, 1984. Amended by Acts 1987, 70th Leg., ch. 149, 22, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 624, 3.09, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 570, 1, eff. June 15, 1991; Acts 1997, 75th Leg., ch. 583, 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 404, 27, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 812, 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1382, 8, eff. June 19, 1999.


CHAPTER 203. ENFORCEMENT OF LAND USE RESTRICTIONS IN CERTAIN COUNTIES

203.001. Applicability of Chapter

This chapter applies only to a county with a population of more than 200,000.

Added by Acts 1987, 70th Leg., ch. 712, 1, eff. June 18, 1987.

Amended by Acts 1997, 75th Leg., ch. 274, 2, eff. May 26, 1997.


203.002. Definition

In this chapter, "restriction" means a limitation that affects the use to which real property may be put, fixes the distance at which buildings or other structures must be set back from property, street, or lot lines, affects the size of lots, or affects the size, type, or number of buildings or other structures that may be built on the property.

Added by Acts 1987, 70th Leg., ch. 712, 1, eff. June 18, 1987.


203.003. County Attorney Authorized to Enforce Restrictions

(a) The county attorney may sue in a court of competent jurisdiction to enjoin or abate violations of a restriction contained or incorporated by reference in a properly recorded plan, plat, replat, or other instrument affecting a real property subdivision located in the county, regardless of the date on which the instrument was recorded.

(b) The county attorney may not enforce a restriction relating to race or any other restriction that violates the state or federal constitution.

Added by Acts 1987, 70th Leg., ch. 712, 1, eff. June 18, 1987.


203.004. Administrative Fee

(a) A complaint filed in connection with Section 203.003 must be accompanied by an administrative fee prescribed by the county commissioners court. The amount of the fee may not exceed the administrative costs to be incurred by the county in pursuing the matter.

(b) The administrative fee shall be deposited in a special county fund. The fund may be used only to administer this chapter.

(c) The commissioners court may waive the administrative fee if the complainant files with the complaint a hardship affidavit in a form approved by the commissioners court.

Added by Acts 1987, 70th Leg., ch. 712, 1, eff. June 18, 1987.


203.005. Court Costs and Attorney's Fees

(a) The county may be awarded court costs and attorney's fees in a successful action under this chapter.

(b) If the court costs and attorney's fees awarded to the county, together with the administrative fee collected under Section 203.004, exceed the county's expenses in a successful action under this chapter, any portion of the excess that does not exceed the amount of the administrative fee collected by the county shall be refunded to the complainant.

Added by Acts 1987, 70th Leg., ch. 712, 1, eff. June 18, 1987.

 

Revised: May 06 2010