Author: John Roper

The Law Office of John Roper, PLLC represents businesses in construction, real estate, and business disputes.

What is Strict Foreclosure?

texas foreclosureIn Texas, realty foreclosures can occur with or without using the court system, depending on the circumstances. The former is called a judicial foreclosure. The latter, unsurprisingly, is called a non-judicial foreclosure. In either event, there is a sale of the property as part of the foreclosure process at which qualified bidders, including the lender, can bid to purchase the property.

In a strict foreclosure, there is no sale. Instead, a court orders the debtor to pay the lender money owed, and title to the realty vests directly in the lender if the debtor fails to do so.

Texas law does not permit strict foreclosures of real estate.

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

Can I Fire my Contractor?

I often get calls from folks who are unhappy with contractors they’ve hired, wanting to know if they can terminate the relationship before the project’s completion.texas construction terminate fire contractor

Termination is typically allowed under any one of three circumstances.

First, does the contract specify the events under which termination may take place? If so, have those events occurred?

Second, did the contractor materially breach the contract and, if so, did that breach occur before any material breach by the owner (the party that contracted with the contractor)?

Third, will the contractor agree to terminate the contract early?

There are repercussions associated with terminating a contractor prematurely. A project owner is wise to take stock of the situation from an objective standpoint, evaluate the risks and benefits of each available option and their attendant consequences, and then move forward decidedly.

Our Tips & Resources posts are intended to provide general educational information. Like all other material on this blog, it is not a substitute for legal advice.

Is Time Always of the Essence in Construction Contracts?

Whether it’s the construction of a new shopping center or a new home, many people assume that a construction time of the essence construction contractproject will be completed by a particular date. For example, the owner of that shopping center may anticipate a date that he/she needs to have the space finished in order to market it and thereby obtain a stream of income to defray his/her expenses. The owner of that home-under-construction may be without shelter if the home isn’t built timely.

Questions often arise around whether a project, or benchmarks leading up to the completion of the project, must be completed within a specific timeframe. Does the construction contract state an explicit completion date? Does it define what exactly constitutes completion? Does it express that time is of the essence? What if the contract attaches a proposed schedule but has no other reference to a completion date? What if that schedule was only an estimate but the owner of the project nevertheless relied upon its accuracy in agreeing to hire the contractor, investing in the shopping center, or selling his/her old home?

In Texas, time isn’t ordinarily of the essence in construction contracts. Moreover, a stated date for performance does not imply or mean that time is of the essence. The contract must expressly make time of the essence or there must be something in the nature or purpose of the contract and the circumstances surrounding it making it apparent that the parties intended that time be of the essence. Otherwise, the contract must be performed within a reasonable amount of time. And a judge, jury, or arbitrator may have to determine what “reasonable” means.

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

 

 

Denied Access to Personal Property in Your Residence/Former Residence?

texas denied access residence retrieve personal propertyThis issue often arises in the common property, landlord-tenant, family law, and foreclosure arenas.

 

A person who has been denied access to his or her residence or former residence may apply to a Texas Justice Court for an order authorizing access to retrieve personal property under Chapter 24A of the Texas Property Code.

The applicant must:

  1. certify that the occupant of the residence has denied the applicant access to the residence;
  2. certify that the applicant is not prohibited by law (including a protective order) from entering the residence;
  3. allege that the applicant, or the applicant’s dependent, requires one or more of the following personal items contained in the residence: (a) medical records; (b) medicine and medical supplies; (c) clothing; (d) child-care items; (e) legal or financial documents; (f) checks or bank or credit cards in the name of the applicant; (g) employment records; or (h) personal identification documents;
  4. allege that the applicant or the applicant’s dependent will suffer personal harm if the items listed in the application are not retrieved promptly;
  5. include documentation that shows the applicant is currently, or was formerly, authorized to occupy the residence; and
  6. execute a bond payable to the occupant in an amount set by the judge.

The Justice Court may issue an order authorizing the applicant to enter the residence accompanied by a peace officer to retrieve the property listed in the application (a) on sufficient evidence of urgency and potential harm to the health and safety of any person; and (b) after sufficient notice to the current occupant and an opportunity for both parties to be heard by the Court.

What happens if the order is granted but the applicant takes personal property that isn’t expressly permitted by the  order or that isn’t owned by the applicant?

Stay tuned!

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

Mortgage Loan Workouts

texas mortgage foreclosure alternativesLenders and borrowers often prefer to avoid foreclosures. Short sales and deeds in lieu of foreclosure are two methods that may be employed to accomplish this objective. Workouts are a third option.

A major premise of a workout is that institutional lenders would rather receive loan repayments than engage in foreclosure and/or litigation proceedings.

A workout is just that — the lender and the borrower work out an agreeable alternative to foreclosure. Upon request of the defaulting debtor, the lender may be willing to reasonably accommodate the debtor. This accommodation can take many forms including, but not limited to, temporarily suspending mortgage payments, waiving accrued costs, fees, or penalties, or extending the loan’s repayment period.

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.

Risk of Unknown Site Conditions on Construction Projects

Sometimes parties to a construction contract encounter conditions on the site that were unknown at the time they entered into their contract. Who bears the risk and expense of dealing with those conditions?texas construction unknown differing unforeseen site conditions

The general rule in Texas: a contractor who is paid on a lump-sum basis is not entitled to additional payment because differing site conditions are encountered and must be addressed.

Exceptions to the general rule may arise where there was fraud or mutual mistake, or the parties expressly agreed in their contract how to allocate such risk and expense.

In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more involved and complex discussions.