Real Estate Litigation

Real Estate Litigation Law Firm

Here at J Lowe Law, we offer comprehensive legal representation when it comes to real estate disputes and litigation. Whether it be a dispute relating to the purchase and sale of a property or a claim relating to title insurance, foreclosure of a property, etc., the attorneys at J Lowe Law are prepared to represent and protect your interests.

Real Estate Litigation

Below are some typical real estate litigation matters that the attorneys at J Lowe Law are well-versed in handling.

Many times, a dispute will arise surrounding the purchase of sale of real estate. Some of the issues involved in such transactions may include the following:

  • Improper contract formation; 
  • Lack of capacity of the parties to enter into a contract; 
  • Illegal purpose of the transaction;
  • Lack of offer and acceptance of the contract;
  • Breach of an express or implied warranty contained in the contract;
  • Fraud;
  • Negligent and/or intentional misrepresentations; and
  • Failure to disclose information materially affecting the property being purchased.

Unfortunately, residential construction defects can be common. In hopes of addressing these common issues, in 1989, the Texas Legislature enacted Chapter 27 “to promote settlement between homeowners and contractors, and to afford contractors the opportunity to repair their work in the face of dissatisfaction.”  To make a claim against a builder/contractor, a homeowner must follow the statutory procedures outlined in Chapter 27 of the Texas Property Code. Chapter 27 is a mandatory statute and must be followed to make a valid claim against a builder/contractor. The statute applies to both new home construction and residential remodel projects and is applicable to both the original homeowner and any subsequent home purchaser. 

A chapter 27 claim is initiated by preparing and sending a formal notice to the builder/contractor by certified mail at the builder/contractor’s last known address, specifying in reasonable detail the construction defects and cost to repair, if known. If available, the notice should be supported by evidence, such as inspection reports, photographs, video recordings, and repair estimates.  

In response to a homeowner’s Chapter 27 notice, the builder/contractor, upon written request, has the right to inspect, test, and document the defects. Within no later than 45 days after the builder/contractor receives the notice, the builder/contractor may make a written offer of 

settlement to the homeowner. The offer may include either an agreement by the builder/contractor to repair the defects or have the defects repaired by an independent contractor at the builder/contractor’s expense. The repairs must be made within 45 days from when the builder/contractor receives notice of acceptance of the offer by the homeowner. If the builder/contractor makes a written offer of which the homeowner deems unreasonable, the homeowner has 25 days to respond in writing to the builder/contractor outlining the basis for the rejection, thereby giving the builder/contractor an additional 10 days to present a counteroffer. If the homeowner rejects a reasonable offer or does not allow the builder/contractor an opportunity to inspect/repair the defects, the homeowner’s potential recovery through a lawsuit and/or arbitration will be limited to the original offer and the homeowner’s attorney’s fees will be limited to those incurred before the reasonable offer was made.  

Chapter 27 limits the nature and type of damages a homeowner may recover against a builder/contractor to the following: (1) the reasonable cost to repair the construction defects; (2) the reasonable cost to repair or replace any damaged personal property caused by the construction defects; (3) reasonable and necessary engineering and consulting fees; (4) reasonable expense for temporary housing incurred during the repairs; (5) the reduction in current market value, if any, after the construction defects are repaired if the defects are structural in nature; and; (6) reasonable attorneys’ fees and litigation costs.  

Title insurance insures against financial loss caused by defects in title to real estate. Title insurance companies defend against lawsuits attacking the title, or in the case of a covered loss, reimburse the insured up to the policy limit.

Generally, title insurance protects a policyholder against loss due to title defects, liens, or other similar matters. Title insurance also protects a policyholder from claims of ownership by other parties and also against losses from problems that arose before a policyholder purchased the property. 

There are two types of policies, owner’s policies and loan policies.

  • Owner’s Policy – An owner’s policy protects a policyholder against losses from ownership problems that arose before they bought the property, but that were not known at the time they bought the property. For example, a property owner could lose title to property due to fraud, errors or omissions in previous deeds, or forgery of a previous deed. The owner’s policy protects the buyer from the covered risks listed in the policy.
  • Loan Policy – The loan policy is issued to the mortgage lender. It protects the lender’s interest in the property until the borrower pays off the mortgage. 

What is a title defect?

A title defect is anything that can cause a title to be considered invalid or defective in some way. Some examples are:

  • Invalid documents due to forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation.
  • Failure of any person or entity to have authorized a transfer or conveyance.
  • A document affecting title that is not properly executed, signed, witnessed, notarized, or delivered.
  • Undisclosed or unrecorded easements not otherwise apparent on your land.
  • No right of access to and from the land.
  • A document executed under a falsified, expired, or otherwise invalid power of attorney.
  • A document not properly filed, recorded, or indexed in the public records.
  • Ownership claims by undisclosed or missing heirs.
  • Defect arising from an improper prior foreclosure.
  • Undisclosed restrictive covenants affecting your property.

Lien issues can also cause title defects. Some examples of lien issues are:

  • Any statutory or constitutional contractor’s, mechanic’s, or materialman’s lien for labor or materials that began on or before the policy date. Talk to an attorney about your rights.
  • Lien for labor or materials furnished by a contractor without your consent.
  • A previous owner failed to pay; a mortgage or deed of trust; a judgment, tax, or special assessment; a charge by a homeowners or condominium association.
  • Other liens or claims that may exist against your title that are not listed in the policy.

The attorneys at J Lowe Law provide comprehensive and detailed services relating to title insurance policies, including but not limited to, the following: 

  • Representing title insurance companies and policyholders;
  • Prosecuting and/or Defending bad faith lawsuits against title insurance companies;
  • Reviewing Title Insurance Commitments and Policies;
  • Resolving Title Issues;
  • Claims involving superiority of title and liens;
  • Title Fraud;
  • Adverse possession;
  • Easements;
  • Mortgage Fraud;
  • Title Insurance Coverage Issues;
  • Claims over fraudulent conveyances;
  • Boundary line disputes;
  • Mechanic’s lien claims; and
  • Foreclosure actions.

In Texas, lenders may foreclose on deeds of trusts or mortgages in default using either a judicial or non-judicial foreclosure process.

Judicial Foreclosure

The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no power of sale is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, the property will be auctioned off to the highest bidder.

Non-Judicial Foreclosure

The non-judicial process of foreclosure is used when a power of sale clause exists in a mortgage or deed of trust. A “power of sale” clause is the clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of property to pay off the balance on a loan in the event of the their default. In deeds of trust or mortgages where a power of sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. 

Power of Sale Foreclosure Guidelines

If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:

  • Prior to proceeding with a foreclosure, Texas laws state that the lender must mail the borrower a letter of demand, informing the buyer he has twenty (20) days to pay the delinquent payments or foreclosure proceedings will begin.
  • At some point after the borrowers twenty (20) days have expired, but at least twenty one (21) days before the foreclosure sale, a foreclosure notice must be: 1) filed with the county clerk; 2) mailed to the borrower at their last known address; and 3) posted on the county courthouse door.
  • The foreclosure sale must take place on the first Tuesday of any month, even if said Tuesday falls on a legal holiday, but only after the proper preliminary notices have been given. The sale is on the courthouse steps by auction to the highest bidder for cash. Anyone may bid, including the lender, who bids by canceling out the balance due on the note, or some part of it.

Lenders may obtain deficiency judgments, but they are limited to the difference between the fair market value of the property at the time of sale and the balance of the loan in default.

The attorneys at J Lowe Law provide comprehensive and detailed services relating to the foreclosure of both residential and commercial properties. You can depend upon the attorneys at J Lowe Law to guide you step-by-step through the Texas foreclosure process.

Eminent domain is the power of the government or a private entity acting upon power granted by the government to take private property for public use. Landowners may also see eminent domain referred to simply as “a taking.” Additionally, the phrases “condemn” or “condemnation” simply refer to the exercise of the power of eminent domain. These terms are often used interchangeably. 

Under Texas law, there are essentially three elements to eminent domain: (1) The condemnor must be authorized to exercise eminent domain; (2) the property may only be taken for a public use; and (3) the landowner must receive adequate compensation. Let’s discuss each of these individual elements. The condemnor must be authorized to exercise eminent domain. Under Texas law, only a governmental entity or a private entity granted the power of eminent domain under law is permitted to condemn property. 

Condemnation proceedings are governed by Texas Property Code Chapter 21, which sets forth the procedure for all condemnation actions, regardless of the type of project at issue. 

Condemnation proceedings can be very complex, and more importantly, involve a “taking” of your property.  If you are the subject of a condemnation proceeding, it is vital to have an attorney by your side to not only guide you through the condemnation process but to also assure that all of your property rights are protected.  The attorneys at J Lowe Law are here to do just that.

Under Texas law, a nuisance is a “condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” The nuisance will be classified as a public nuisance or a private nuisance depending on the circumstances. If a nuisance causes problems to the general public, it’s classified as a public nuisance. If, on the other hand, a nuisance interferes with the right of specific person, it is considered a private nuisance.

To be substantial, a court will look at a number of factors, including:

  • The nature and extent of the interference;
  • How long it lasts;
  • How often it reoccurs; and
  • Any other facts showing how it interferes with your daily life.

The court will also take into account the following:

  • The character of the neighborhood;
  • The land usage;
  • Social expectations;
  • The location of the land;
  • The extent to which others are engaging in similar conduct in the area;
  • The motive in causing the interference;
  • Whether the individual can stop or lessen the interference; and
  • The interest of the public and community at large. 

The interference must be more than normal small annoyances or disturbances.

Examples of private nuisances include:

  • Vibration;
  • Pollution of a stream or soil;
  • Smoke;
  • Foul odors;
  • Bright lights; and
  • Loud noises

Examples of a public nuisance are:

  • Major health hazards;
  • Pollution;
  • Unsafe storage of dangerous materials;
  • Criminal activity;
  • Sickening smells;
  • Bright lights;
  • Loud noises;
  • Abandoned vehicles;
  • Accumulated rubbish;
  • High weeds; and 
  • Other unsanitary conditions.

The damages a Court may award depends on the type of nuisance. For example, if a nuisance is only temporary, the damages available are for the use and enjoyment that were lost. On the other hand, if a nuisance is permanent, the owner may recover lost market value of the property.

If you are the subject of a public or private nuisance, it is vital to have an attorney by your side to not only guide you through the litigation process but to also assure that all of your property rights are protected. The attorneys at J Lowe Law are here to do just that.  

Boundary disputes are a common occurrence. They normally arise due to confusion or uncertainty.  Below are some common boundary disputes that the attorneys at J Lowe Law are well-versed in handling. 

Trespassing – Being accused of trespassing means that you have made an unauthorized entry to another person’s property. Trespassing disputes can arise if you cause another object or person to enter onto someone else’s property. 

Encroachment – Encroachment is when your neighbor makes a physical intrusion into your land, which can either be vegetative, structural, or nonstructural. Typically, this intrusion is in the form of a house or fence. 

Adverse Possession – If an individual uses all or a portion of your land for an extended period, that individual may claim that the land now belongs to them.  This may be especially true if the individual improves the land in some way, shape, or form. 

Border disputes commonly arise, and if not handled immediately, they can lead to the devaluation of your property or possibly even the loss of your property. 

(214) 310-1419

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