Real Estate Litigation

Flooding Caused by the Diversion of Surface Water

texas overflow surface water runoffHave you diverted water onto your neighbor’s property? Has water been directed or channeled onto your property?

Under section 11.086 of the Texas Water Code, a person may not divert or impound the natural flow of surface waters, or permit a diversion or impounding by him/her to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

By its own terms, this statute only prohibits certain changes to the natural flow of surface water. “The term surface water, as used in section 11.086, is not defined in the Water Code, but has been interpreted by Texas courts to mean water ‘which is diffused over the ground from falling rains or melting snows, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.’ ” Tex. Woman’s Univ. v. The Methodist Hospital, 221 S.W.3d 267, 277 (Tex.App.—Houston [1st Dist.] 2006, no pet.) (emphasis added). Diffuse surface water is distinct from flood waters and from waters entering or following a defined course or channel. Id. at 278.

Waters entering or following a defined course or channel are not considered diffuse surface water. This includes water in a ditch, a pond, a pipe, or a river. Id.

“Thus, a landowner might divert the entire Brazos River across his neighbor’s property without subjecting himself to liability under Section 11.086 of the Water Code.” Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex.App.—Houston [14th Dist.] 2003, no pet.).

Of course, this wouldn’t necessarily absolve this person from liability under other Texas law.

The Water Code is not the only legal authority governing flooding situations.

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.

Will a New Texas Lease Law Help Mitigate Human Trafficking?

texas commercial lease termination prostitution human traffickingA landlord who reasonably believes that a tenant operating under a commercial lease is using the premises, or allowing the premises to be used, for prostitution, the promotion of prostitution, compelling prostitution, or for human trafficking may file suit to obtain possession of the premises and unpaid rent.

The landlord in such a situation does not have to give (1) notice of proposed eviction or notice of termination before giving the required notice to vacate; or (2) more than three days’ notice to vacate before filing suit.

Texas already allows termination of a commercial or residential lease based upon a public indecency conviction. But now in some situations a landlord may obtain possession of commercial premises based on belief and without a criminally adjudicated determination or finding.

This new law, codified in Texas Property Code section 93.013, applies to all commercial leases entered into or renewed after August 31, 2017.

It does not apply to residential leases.

Mineral Interest Liens in Three Sentences

texas oil gas water mineral interest lienA person who furnishes labor or materials in connection with digging, drilling, operating, maintaining, completing, or repairing an oil, gas, or water well, or an oil or gas pipeline, mine, or quarry, is granted a lien to secure payment.

The lien is asserted by timely filing a proper affidavit in the records of the appropriate county clerk’s office.

The claimant must foreclose the lien by filing suit, if the claim isn’t otherwise paid.

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.

Writs of Possession in Three Sentences

A writ is a written court order that commands the person to whom it is directed to perform, or refrain from performing, a specified act.

texas writ of possession

A writ of possession is a command often directed to a peace officer to remove people or items from property, or to dispossess people of property, and to deliver possession to another person.

Writs of possession may be issued in eviction cases, trespass to try title lawsuits, eminent domain actions, and other legal proceedings.

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.

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.

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.