Real Estate Disputes Attorneys TX
Some of the most contentious litigation arise out of real estate disputes. You have invested a lot of your time and your money into buying a home but may suddenly find that the seller failed to disclose a material fact that has adversely affected its value. Other disputes may be over property line designations, easements, or lease disagreements. The Austin business litigation & defense attorneys at Byrd Davis Alden & Henrichson, LLP have handled these as well as the following real estate disputes:
- Other property issues
- Purchase and sale agreements
- Breach of contract
- Title and title insurance
- Eminent domain
- Failure to disclose by seller
- Earnest money contracts
- Salesperson and broker liability
Some of the more common disputes pertain to real estate transactions where a seller failed to disclose a material defect in the property leading to salesperson and broker liability in some cases. Others involved property disputes.
Seller’s Obligation to Disclose
Many real estate disputes arise over a seller’s failure to disclose material defects in the property. In nearly every sale of residential property in Texas, the seller must disclose the presence of defects and items requiring repair in a written notice. The disclosure must indicate the following:
- Appliances or other features that are not working.
- Known defects or malfunctions in certain systems such as plumbing, electrical and heating and air conditioning.
- If events such as flooding, fires or termite infestation have occurred.
- Violations of deed restrictions
- Unpaid HOA fees
- Needed repairs
- Any condition that materially affects the health or safety of an individual.
The disclosures are not required if the home is acquired in a divorce settlement, foreclosure sale, deed in lieu of foreclosure, from a co-owner or governmental entity among a few other circumstances.
Some sellers and buyers may enter into an “as-is” transaction where no warranty or disclosure is made but there must be evidence that the parties were of equal bargaining positions and that the buyer was not relying on the representations of the seller. The “as-is” provision is more readily accepted by the courts in commercial transactions where the parties are presumed to be more sophisticated.
Texas Business and Commerce Code Section 27.01 (Statutory Fraud)
This law defines false representations and what makes such conduct actionable at law:
“A false representation of a past or existing material fact when the false representation is made to a person for the purpose of inducing that person to enter into a contract and is relied on by that person into entering into the contract… and relied on by that person in entering into that contract.”
There are also false promises where someone promises to do something that is not acted upon. It is actionable if the promise is material, was not meant to be fulfilled and was made to induce the person to enter into a contract and the promise was relied upon as a reason to enter into that contract. This law does not require you to prove the seller acted recklessly or intentionally in not disclosing a material fact.
A material fact is any fact that a reasonable person would have relied on to enter into the contract.
If the failure to disclose or false representation or promise was made intentionally and with full awareness of its falsity, then punitive or exemplary damages may be awarded along with actual damages. You can also collect attorney’s fees, expert witness fees, litigation expenses and court costs.
Common Law Fraud
Under principles of common law fraud, you can bring a claim against the seller if the seller’s false representations are material and made with knowledge of their falsity or recklessly without any knowledge if they were true but made with that assertion.
So long as you reasonably and justifiably relied on the false statement to enter into the transaction and suffered damages, you can collect compensation for actual damages.
Deceptive Trade Practices Act
You can also bring a claim for the seller’s failure to disclose under the Deceptive Trade Practices Act since the same language regarding the intentional failure to disclose a material fact to induce a person to enter into a transaction and which was relied upon by that person is found here as well.
This act also includes breach of an express or implied warranty or any unconscionable act by a person. A failure to disclose a material fact could be construed as an unconscionable act permitting the plaintiff to recover attorney’s fees, court cost and damages that are three times your actual damages.
Real Estate Agent and Broker Liability
Real estate salespersons work for brokers. An error or failure by the salesperson could extend liability to the broker meaning that an aggrieved party can pursue compensation from both.
Real estate license holders, however, are not liable for the misrepresentations made or concealments by their client unless they knew of the falsity or failed to disclose the falsity or concealment.
Other real estate disputes concern property boundary line and easement disagreements.
Easements are created by written agreement or by implication. There is the land that benefits from the easement called the dominant estate and the land burdened by it, or the subservient estate. There are rules for establishing an easement such as unity of ownership, continuous use of the easement and reasonable necessity for the use and enjoyment of the dominant estate.
Disputes arise when the parties fail to abide by the terms of the agreement or do not understand their rights and obligations including abandonment, misuse, interference or a failure to pay property taxes.
Boundary Line Disagreements
Your recorded property deed should indicate the legally recorded boundaries of your property. If there is a dispute, the county assessor can send a surveyor to review the land and compare the findings to the recorded deed and survey.
In some cases, the doctrine of adverse possession may cause a disputed portion of property to change ownership to the occupier. Texas has embodied this principle by statute and recognizes the claim if there is:
- Actual possession of the property.
- That is peaceful, open and notorious.
- Which is adverse to the owner’s claim.
- And is continuous for the statutory period, which may be 3, 5 or 10 years.
For claims under the 3 or 5 year statute, you will need a deed or other record of conveyance that gives you title. The 10-year statute does not require a written document indicating title.
You also have to demonstrate that the actual owner of the property had actual or constructive notice of the adverse possession and that you possessed it over the statutory period. Filing an affidavit of adverse possession constitutes notice and the date the adverse possession began.
Real Estate Dispute Attorneys
There are many pitfalls to avoid in real estate transactions and property disputes. Whether you are a buyer, seller, real estate salesperson or broker, you need the services of a dedicated business attorney.
If you are faced with a lawsuit or are contemplating legal action concerning a real estate dispute, call our law firm at 512-271-5304 to arrange for an appointment.