TX Underwriting Summary

Search/Exam

• Minimum Search Requirements -- Full plant search (can bring forward a starter if it is a full owners or loan policy – not short form)
• Plant or other search restrictions -- Yes, geographic plant in every county licensed must cover period back to 1979

• Additional Requirements for REO Searches -- NO
• Foreclosure Checklist -- N/A
• Special Searches Required (Code, HOA, Utilities)? -- No
• Survey Requirements -- YES – for survey deletions (and any short form policy); either new survey or existing survey and T-47 Survey Affidavit
• UPL Hot Button Issues -- Doc prep only

Default Vesting

If title is held by two individuals married to one another the presumption is that title is held as community property. Upon the death of the first to die, title does NOT automatically vest in the survivor. Title will pass by heirship or by the terms of the decedent's will.

Title MAY be held by joint tenants with right of survivorship, but such must be clearly indicated and must be backed up by a written agreement between the parties. Merely holding or taking title as joint tenants does not imply a right of survivorship, and merely taking title as JTWROS without a written agreement does not establish a right of survivorship.

UPL

• Attorney involvement not required other than for doc preparation
• Fee attorneys act as escrow officers for title companies and receive a percent of premium and can have the title company’s name on door in return for audit of their escrow accounts.
• Third party attorneys operate under authority of Procedural Rule P-22, are not escrow officers and cannot receive Insured Closing Protection.
• Search, exam and closing the transaction can all be done by layperson.
• Title insurance agents must provide title evidence from a licensed abstract plant. Attorneys can, for an agreed upon fee, examine or close the transaction as defined in procedural rule P-1f of the Texas Basic Manual for Writing of Title Insurance promulgated by the Texas Insurance Department.

Witness Requirements

None Required. Two witnesses may substitute for notary acknowledgement but not a common or desireable practice.

Mortgage/Transfer Tax

None

Spousal Joinder Requirements/Homestead

• If the property is homestead of the owner and non-title holding spouse, joinder of the spouse is required.
• for mortgages, the non-titled spouse may sign only the lien instrument and not the debt instrument.
• A rural homestead is limited to 100 acres for a single person and 200 acres for a family.
• An urban homestead is limited to a lot or contiguous lots which do not exceed 10 acres.
• In order to be effective, a homestead disclaimer must designate other property then owned as homestead, and the other property must use up all of the declarant’s homestead allotment.
• Homestead property may not be conveyed or mortgaged without the joinder of both spouses. The rule applies whether the homestead is community property or the separate property of one spouse.

Community Property

• Texas is a community property state.
• All property acquired during marriage is presumed to be community, unless acquired by gift, devise or descent.
• A divorce decree should divest one spouse of the property and award the property to the other spouse.
• If community property is not disposed of in a divorce decree the parties thereafter hold the property as tenants in common.
• Community property cannot be conveyed or mortgaged without the consent of both spouses.
• A deed by one spouse of community property to a third party is void, but creates a cloud on title.
• Texas follows the “inception of title” rule. Whether something is separate or community is determined by the facts existing at the time the property was acquired.

Power Of Attorney

• The statutory form for a durable POA is found in Ch. 751 and 752 of the Estates Code.
• The POA must be recorded if it is used in a real property transaction.
• A POA may be used in a home equity transaction only if the POA was signed in the office of a lender, an attorney, or a title company, all of which must be in Texas. Refer to the Texas Underwriting Bulletin on this subject.
• POAs signed in other states are acceptable in Texas if they are executed in conformity with the laws of the state where they were signed.
• Agent may only exercise authority specifically granted in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority.
• A general POA, such as “to do all acts that the principal can do” are not express grants of specific authority and are not accepted by WFG.

Construction Liens

If the property is homestead, any lien securing a construction loan must be evidenced by a mechanic’s lien contract signed by both spouses and filed for record prior to the commencement of construction. If this requirement is not satisfied, the lien is void.

Additionally, if the property is homestead and the construction constitutes “repairs and renovation” as opposed to “new construction” the lien is void unless at least 5 days elapsed between the application for credit and the signing of the lien contract. Additionally, the contract must provide for a 3 day right of rescission, and must be signed at the office of the lender, an attorney or a title company, any of which must be in Texas. Texas Constitution, Art. XVI, Sect. 50(a)(5). On non-homestead property, a valid construction lien may be evidenced by a deed of trust securing advances for the purpose of construction.

An MLC (Mechanic's Lien Contract) is the vehicle in which a homestead may be encumbered for construction work (a voluntary mechanic’s lien is one of the 8 permissible liens against a homestead in Texas, but only so long as it meets certain constitutional and statutory requirements, hence the “Mechanic’s Lien Contract”). The builder on the MLC is paid via a loan from a lender (which has its own DOT), and the builder assigns the MLC to the lender (that’s either done within the MLC itself (and the lender will also sign the MLC) or through a separate assignment. So the MLC is effectively subsumed into the lender’s DOT (and there should be a renewal and extension rider on the DOT referencing the MLC). If the MLC is assigned separately and the lender's DOT properly refers to the MLC, then upon release of the DOT, we can remove the MLC from the commitment.

Surveys

Survey coverage, also known as amending the survey exception, can be requested either on the loan policy or the owner policy.

Here is the standard survey exception, which is the same in the OP and the LP:

“Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements.” 

By amending the exception, everything is stricken except “shortages in area”. We never insure the amount of acreage, under any circumstances.

The amended exception looks like this:

“Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements.

We must have an acceptable survey to give the coverage. It must be signed and contain a proper certification. If it is not a current survey, we might still be able to use it if the seller or borrower executes an affidavit (the T-47) detailing any changes to the land or improvements since the survey was made.

Survey coverage is free on a LP. It is pretty rare to have a survey matter so severe that we cannot give survey coverage to a lender. We frequently take the risk of minor encroachments on an LP.

Survey coverage on an OP is an additional 5% of the basic premium on a residential policy, and 15% of the basic premium on a regular OP. Whether the T 1 or the T 1R is being issued is irrelevant.

We never give the owner coverage over a known survey issue. For example, suppose we have an acceptable survey and it shows the house encroaches into the front set back line by 1.0 foot. We can amend the survey exception as shown above, BUT we still take a specific exception to the encroachment on Sch B. For example:

“Encroachment of the structure into the front set back line, as shown on survey (date and name of surveyor). In the event of a conflict between this exception and exception B2, this exception shall control.”

Bottom line is that we take exception on the OP to anything shown on the survey. In essence, we are insuring that the survey is correct … we are not insuring there are no encroachments unless there really are none.

The only situations where we can give survey coverage w/o a survey is if the property is a condominium or if it’s a platted subdivision lot with no improvements, in which case we accept the plat itself as a survey.

WFG’s rule on issuing a T 19 w/o a survey is that we will consent to that if the transaction is a rate/term refi, a HEL or a reverse mortgage, and the land is in a platted subdivision, subject to a $500,000.00 cap. Anything over that must be on a case by case basis.

This does not affect the requirement of P-2 that a survey is necessary to give a lender the survey amendment. We will accept a plat as a survey if the land is platted and unimproved. We will also accept a condo declaration as a survey under P 2.

Copies of the applicable rules are here

Mortgages And Trust Deeds

• Most mortgages in Texas take the form of deeds of trust. The property owner conveys the property, in trust, to the trustee; the trustee has no authority to do anything unless and until the beneficiary (the lender) instructs the trustee to act.
• When the loan is paid off, the release comes from the beneficiary (the lender) and not from the trustee.
• A mortgage lien on real property is barred by limitations 4 years after the date of maturity of the loan, which is the date the final payment is due.
• Texas recognizes the Purchase Money Mortgage doctrine and a purchase money mortgage will take priority over a judgment lien (even if previously recorded) against the BUYER.

Homestead Protection Against Creditors

Abstracts of Judgment (AJs a/k/a judgment liens) do not attach to homestead, but it’s a question of how we document that. If the AJ were under $5K, I would say move on, no need to address, but with this amount plus the accrued interest and a sale (as opposed to a refi of purchase money), we should address, either through a partial release from the judgment creditor or through the property code section 52.0012 (release by affidavit) – see the attached bulletin on the procedure (which takes at least 30 days to complete, and I require strict compliance with the statutory requirements and recommend the borrowers/sellers get counsel to assist with sending the forms). Alternatively, he can go ahead and pay and get a release, if he just wants to be done with it.

But if this were a refi of a purchase money or a home equity loan, I would insure around it, as the purchase money DOT will always be superior to the AJ and in the home equity loan scenario, you are already obtaining the evidence that it’s homestead, so the risk is minimal.

And you are correct, the SOL for a state AJ (to a private creditor) is 10 years, 20 years if to the state or a state agency. However, if the judgment has gone dormant (more than 10 years since the date of the judgment, not recording of the AJ), let me know, as we may be able to bar the AJ even if the AJ itself has not expired.

Foreclosure Review

• We will not insure the title of someone who was the purchaser at a foreclosure sale; we will not insure until there is a subsequent arm’s length sale.
• Always leave the ‘rights of parties in possession’ exception in the commitment/policies. You may remove this exception when requested by the proposed lender. You may remove this exception when requested by the proposed buyer only upon compliance with Rule P-3, which allows the agent to make a reasonable charge for inspecting the property.

1. Review the Appointment of Substitute Trustee; contact Underwriting if you believe the Appointment was signed by someone other than the mortgagee, the mortgage servicer, or an attorney authorized by the mortgage servicer.

Note:	The “mortgage servicer” is the last entity to whom a debtor has been instructed by the current mortgagee to send payments; the mortgagee and the mortgage servicer may be the same entity.

• You may accept as true the recitals contained in an affidavit or incorporated into the substitute trustees’ deed. The recitals should cover the following:
  • A Notice of Sale was posted at the courthouse door of each county in which the property is located, at least 21 days before the sale;
  • A copy of the posted Notice of Sale was filed in the office of the county clerk of each county in which the property is located, at least 21 days before the sale;
  • At least 21 days before the sale, the servicer sent written notice of the sale to each debtor who is obligated to pay the debt, according to the records of the servicer; the notice was sent by certified mail to the debtor’s last known address, according to the records of the servicer.
  • The property was sold between the hours of 10:00 AM and 4:00 PM, and the sale commenced not later than 3 hours after the earliest time stated in the Notice of Sale;
  • If the property was the debtor's residence, the servicer served written notice of default on the debtor, at the debtor’s last known address according to the records of the servicer, and the debtor was given at least 20 days to cure the default before the debt was accelerated and notice of sale was given;
  • The debtor was alive at the time of the foreclosure; and,
  • The debtor was not on active military duty at the time of the sale, or within 9 months prior to the sale.

If you have reason to believe that any recital is inaccurate, please contact Underwriting before proceeding.  

• We will also insure subsequent sales and mortgages by parties who acquired title from a foreclosure sale purchaser, provided (1) your exam does not uncover any foreclosure related issues and (2) the seller or borrower has an existing owner policy. If no prior policy is available, contact Regional Underwriting for guidance.

Who May Serve As Trustee On Deed Of Trust

• Any person or entity may be named as the trustee. Trustee does not have to be a resident of Texas.
• An underwriter or title agent may be designated as the trustee, but it is not customary or required.
• In actual practice, the named trustee is almost always removed and a substitute trustee (usually an attorney) is appointed by the lender to handle the foreclosure.

Time Limitations

Liens Imposed by Multiple Jurisdictions

Ad Valorem Taxes

• The lien “exists in favor of each taxing unit having power to tax the property.”
• The lien is prior to a federal tax lien unless US law determines otherwise. Sect. 32.04.

Sec. 32.05.  PRIORITY OF TAX LIENS OVER OTHER PROPERTY INTERESTS.  
(a)  A tax lien on real property takes priority over a homestead interest in the property.
(b)  Except as provided by Subsection (c)(1), a tax lien provided by this chapter takes priority over:
(1)  the claim of any creditor of a person whose property is encumbered by the lien;
(2)  the claim of any holder of a lien on property encumbered by the tax lien, including any lien held by a property owners' association, homeowners' association, condominium unit owners' association, or council of owners of a condominium regime under a restrictive covenant, condominium declaration, master deed, or other similar instrument that secures regular or special maintenance assessments, fees, dues, interest, fines, costs, attorney's fees, or other monetary charges against the property; and
(3)  any right of remainder, right or possibility of reverter, or other future interest in, or encumbrance against, the property, whether vested or contingent.
(b-1)  The priority given to a tax lien by Subsection (b) prevails, regardless of whether the debt, lien, future interest, or other encumbrance existed before attachment of the tax lien.
(c)  A tax lien provided by this chapter is inferior to:
(1)  a claim for any survivor's allowance, funeral expenses, or expenses of the last illness of a decedent made against the estate of a decedent as provided by law;
(2)  except as provided by Subsection (b)(2), a recorded restrictive covenant that runs with the land  and was recorded before January 1 of the year the tax lien arose; or
(3)  a valid easement of record recorded before January 1 of the year the tax lien arose.

• Delinquent HOA assessments are inferior to the lien unless there is a notice of lien in a liquidated amount filed of record before the tax suit is commenced. Sect. 32.05(d). In that situation, the HOA must be joined as a party defendant. Setting up the lien in the restrictions does not constitute ‘notice’ to the tax collector.

• “A tax delinquent for more than the limitation period prescribed by this section and any penalty and interest on the tax is presumed paid unless a suit to collect the tax is pending.” Sect. 33.05(b). “If there is no pending litigation concerning the delinquent tax at the time of the cancellation and removal, the collector for a taxing unit shall cancel and remove from the delinquent tax roll: (1) a tax on real property that has been delinquent for more than 20 years; (3) a tax on real property that has been delinquent more than 10 years if the property has been owned for at least the preceding 8 years by a home-rule municipality in a county with a population of more than 3.3 million.” Sect. 33.05(c).

• A tax lien cannot be foreclosed non judicially, there must be a law suit. The plaintiff must obtain a judgment, which, like all judgments is only binding on the defendants who were joined and properly served.

• The tax lien attaches to reversionary and remainder interests but the holders of those interests must be joined in order to wipe them out.

• Foreclosure of the tax lien will not wipe out a recorded easement or a recorded restrictive covenant which was placed of record prior to January 1st of the calendar year for which taxes are due.

• Beware of AJs based on tax suit judgments.

Liens Imposed by Counties

Assessments for Road Improvements

• Citation: Transportation Code 253.009
• Priority: Date of filing
• Duration: No limitation
• Inferior To: Ad valorem tax liens; existing liens and interests

Repair/Removal of Shoreline Protection Structure

• Citation: Local Govt. Code 233.001
• Priority: Date of filing, but has priority over any judgment lien
• Duration: No limitation
• Inferior To: Ad valorem tax liens; previously recorded mortgage liens
• Superior To: Any judgment lien; later recorded liens and interests

• Applies to bulkheads or “other methods of shoreline protection.”
• The assessed lien is superior to all other previously recorded judgment liens and is inferior to previously recorded mortgage liens. Sect. 233.001 (c).

Litter Lien (Litter near a public highway)

• Citation: Health & Safety Code 365.034
• Priority: Date of filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens; previously recorded mortgage liens
• Superior To: Any judgment liens; later recorded liens and interests

Public Nuisance

• Citation: Health & Safety Code, 343.011; 343.0111; 343.022; 343.023
• Priority: Date of filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens; previously recorded mortgage liens
• Superior To: Later recorded liens and interests

• This declares various situations to be a public nuisance. Sect. 343.001(a).
• Weeds, rubbish, junk, refuse, hazardous and abandoned structures, etc.
• The lien is effective upon filing, Sect. 342.023(d) and is inferior to ad valorem taxes and to preexisting mortgage liens.

Liens Imposed by Water Districts

Standby Fees

• Citation: Water Code, 49.231
• Priority: Same as ad valorem tax lien
• Duration: Same as ad valorem tax lien

• A standby fee is “a charge, other than a tax, imposed on undeveloped property for the availability of potable water, sanitary sewer or drainage facilities and service. Sect. 49.231(1).
• “On January 1 of each year, a lien attaches to undeveloped property to secure payment of any standby fee, interest on the fee, and any penalty imposed under this section. The lien has the same priority as a lien for taxes of the district.” Sect. 49.231(k).
  • “For purposes of title insurance policies issued under the authority of Title 11, Insurance Code, standby fees are considered taxes.” Sect. 49.231(n).

Water District Assessment Liens

• Citation: Water Code, 55.604; Tax Code 32.01
• Priority: Based on filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens

• “Assessments made by the board for maintenance and operation of the district are liens against the land on which the assessments were made and remain liens on the land until the assessments are paid. No law which provides for a period of limitation against actions for debt shall apply under this section, and these debts cannot be barred by limitation.” Sect. 55.604

Liens Imposed by Municipalities

Demolition Lien

• Citation: Local Govt. Code, 214.001; 214.0015
• Priority: Date of filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens; possibly previously recorded mortgage liens
• Superior To: All judgment liens and later recorded liens and interests

• This lien does not apply to homesteads. Sect. 214.001(n).
• The lien is prior to any existing mortgage lien who was provided the proper notices throughout the assessment process, otherwise the previously recorded mortgage lien is superior. Sect. 214.001(o).
• The lien has priority over a previously recorded judgment lien. Sect. 214.0015(e).

Assessments for Street Improvements

• Citation: Transportation Code 253.009; 313.054
• Priority: Date of filing notice of assessment
• Duration: No limitations
• Inferior To: Ad valorem tax liens
• Superior To: Other liens and interests

Municipal Utility Services Lien

• Citation: Local Govt. Code 552.0025
• Priority: Superior to all except for previously recorded mortgage lien
• Duration: No limitations
• Inferior To: Ad valorem tax liens; previously recorded mortgage liens
• Superior To: All judgment liens and later recorded liens and interests

• “The municipality’s lien is inferior to a bona fide mortgage lien that is recorded before the recording of the municipality’s lien in the real property records of the county where the property is located. The municipality’s lien is superior to all other liens, including previously recorded judgment liens and any liens recorded after the municipality’s lien.” Sect. 552.0025(h).

Assessments for Municipal Water/Sewer Systems

• Citation: Local Govt. Code 552.065
• Priority: Superior to all other liens, except for State, County, School or City ad valorem tax liens
• Duration: No limitations
• Inferior To: Ad valorem tax liens
• Superior To: All other liens and interests.

• The lien is a first and prior lien on the assessed property and the lien takes effect on the date that a notice of proposed improvements is made under Section 552.067. The lien is superior to any other lien or claim except a state, county, school district or municipal property tax lien.” Sect. 552.065(c).
• “All property, including church and school property, is subject to a tax or assessment authorized for local improvements under this subchapter.” Art. 552.068(a).

Weed and Sanitary Lien

• Citation: Health & Safety Code, 342.007; 342.008
• Priority: Date of filing of lien statement
• Duration: No limitations
• Inferior To: Ad valorem tax liens; street improvement liens
• Superior To: All other liens and interests
• “The lien attaches upon the filing of the lien statement with the county clerk.” Sect. 342.007(b).

Liens Imposed by the State

Miscellaneous State Tax Liens

• Citation: Tax Code, 113.001; 113.101; 113.103
• Priority: Based on date of filing
• Duration: No limitation
• Inferior To: Ad valorem tax liens

• “All taxes, fines, interest, and penalties due by a person to the state under this title are secured by a lien on all of the person’s property that is subject to execution. (b) The lien for taxes attaches to all of the property of a person liable for the taxes.” Sect. 113.001(a)

• No lien created by this title is effective against a person listed in Subsection (b) of this section who acquires a lien, title or other right or interest in property before the filing, recording and indexing of the lien: (1) on real property, in the county where the property is located. (b) This section applies to a bona fide purchaser, mortgagee, holder of a deed of trust, judgment creditor, or any other person who acquired the lien, title, or right or interest in the property for bona fide consideration.” Sect. 113.101(a)

• The lien continues until the taxes are paid. Sect. 113.105.

• The Comptroller, upon receipt of payment, may transfer the tax lien and all accompanying rights. Sect. 111.251

Judgment Lien

• Citation: Property Code 52.006; Civil Practices and Remedies Code, 34.001
• Priority: Based on filing.
• Duration: 10 years from filing; 20 years if the AJ was filed on or after April 23, 2007.
• Inferior To: Ad valorem tax liens; existing mortgage liens and interests
• Superior To: Later recorded liens and interests

Lien to Secure Unpaid Wages

• Citation: Labor Code, 61.081; 61.0825
• Priority: Based on filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens
• Superior To: All other liens and interests

• Must be based on final order of the TWC against an employer indebted to the state for penalties or wages. The lien can be transferred to the worker.

Solid Waste Disposal Act (Texas Natural Resource Conservation Commission)

• Citation: Health & Safety Code, 361.001, 361.194
• Priority: Based on date of filing
• Duration: Until the liability for the costs is satisfied or the lien becomes unenforceable through operation of law.
• Inferior To: Ad valorem tax liens; other existing liens and interests
• Superior To: Later recorded liens and interests

• Regulates the storage and disposal of hazardous waste at municipal solid waste facilities.
• “For the purpose of determining rights of all affected parties, the lien does not relate back to a time before the date on which the affidavit is recorded, which date is the lien inception date.” Sect. 361.194(b).
• The lien may be bonded around. “In acquiring an interest in real property, a purchaser or lender may rely on and is absolutely protected by the record of the bond, notice, and return.” Sect. 361.194(i).

Inheritance Taxes

• Citation: Tax Code, 113.001; 113.105
• Priority: Based on filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens; previously filed mortgage liens
• Superior To: All other liens and interests

Restitution Lien

• Citation: Code of Criminal Procedure, 42.21
• Priority: Based on filing date of instrument creating lien
• Duration: 10 years from date of filing
• Inferior To: Ad valorem tax liens; previously filed mortgage liens
• Superior To: All other liens and interests.

Abandoned Coal Mine Reclamation

• Citation: Natural Resource Code, 134.150
• Priority: Date of filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens
• Superior To: All other liens and interests

• “The statement is a lien on the land second only to a property tax lien.” Sect. 134.150(b).

Unemployment Taxes

• Citation: Labor Code, 213.057; 213.058
• Priority: Based on filing
• Duration: No limitations
• Inferior To: Ad valorem tax liens; previously filed mortgage liens
• Superior To: Same as state tax liens

• “The amount due from an employing unit to the commission under this subtitle is secured by a lien on property belonging to the employing unit or to any individual indebted for the sum.” Sect. 213.058(a).
• Chapter 113 of the Tax Code applies to this lien.

Liens Imposed by the Federal Government

Federal Tax Lien

• Citation: 26 USCS 6321; 6323
• Priority: Date of filing
• Duration: 10 years and 30 days
• Inferior To: Ad valorem tax liens; existing mortgage liens; later purchase money liens; public improvement assessment liens and utilities liens.
• Superior To: All other liens and interests

• “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount … shall be a lien in favor or the United States upon all property and rights to property, whether real or personal, belonging to such person.”
• Federal tax liens are inferior to ad valorem tax liens, liens securing assessments by a taxing authority for public improvements, and liens securing charges for utilities or public services.” Sect. 6323(b)(6).

Estate Tax Lien

• Citation: 26 USCS 6324
• Priority: Based on lien inception on date of death
• Duration: 10 year from date of death
• Inferior To: Ad valorem tax liens, expenses of administration and existing liens and interests
• Superior To: All other later filed liens and interests
• “Unless the estate tax imposed by chapter 11 is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien upon the gross estate of the decedent for 10 years from the date of death, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien.” Sect. 6324(a)(1).

Judgment Lien

• Citation: 28 USCS 3201
• Priority: Based on filing.
• Duration: 20 years from filing
• Inferior To: Ad valorem tax liens and existing liens and interests
• Superior To: All other liens and interests later in time except for purchase money liens.
• “A lien created under (this) subsection shall have priority over any other lien or encumbrance which is perfected later in time.” Sect. 3201(b). *Probably has priority over a purchase money lien.

Federal lien securing a criminal fine

• Citation: 18 USCS 3613
• Priority: Based on filing
• Duration: 20 years after entry of judgment or death of defendant
• Inferior To: Ad valorem tax liens and existing liens and interests
• Superior To: All other liens and interests later in time except for purchase money liens.
• “The liability to pay a fine shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person fined, or upon the death of the individual fined.” Sect. 3613(b).*“The lien arises on the entry of judgment and continues for 20 years or until the liability is satisfied, remitted, set aside or is terminated under subsection (b). Sect. 3613(c).

Liens Imposed by Private Parties

Judgment Lien

• Citation: Property Code 52.006; Civil Practices and Remedies Code, 34.001
• Priority: Based on filing.
• Duration: 10 years from filing, so long as the judgment supporting it has not become dormant
• Inferior To: Ad valorem tax liens and previously recorded liens and interests and purchase money liens of the obligor
• Superior To: Later created liens and interests *There is a procedure for effecting a release of the AJ by way of an affidavit claiming homestead. Property Code 52.0012.*Merely posting a supersedeas bond on appeal does not eliminate the risk presented by the AJ. Property Code 52.0011.

Broker’s Lien

• Citation: Property Code, Ch. 62
• Priority: Based on filing.
• Duration: 2 years from filing date to file suit to foreclose. Sect. 62.062
• Inferior To: Ad valorem tax liens and previously recorded liens and interests
• Superior To: Later created liens and interests

Child Support Lien

• Citation: Family Code, 157.318; 157.320
• Priority: Based on filing.
• Duration: Varies
• Inferior To: Ad valorem tax liens, existing liens and later filed purchase money liens
• Superior To: Later created liens and interests
• The lien does not attach to exempt property. Sect. 157.317(a)(b).*The lien exists until the amounts secured by it are paid. CSLs filed on or after May 26, 2009 are valid for 10 years, but may be renewed for unlimited additional 10 year periods. Sect. 157.318(d)*“A conveyance of real property by the obligor after a lien notice has been recorded in the county where the real property is located is subject to the lien and may not impair the enforceability of the lien against the real property.” Sect. 157.320(c).*“A lien created under this subchapter is subordinate to a vendor’s lien retained in a conveyance to the obligor.” Sect. 157.320(d).*There is now a procedure for effecting a release of the CSL by way of an affidavit claiming homestead. Sect. 157.3171.

HOA Lien for Assessments

• Citation: Civil Practices & Remedies Code, 16.051
• Priority: Based on filing date of restrictions establishing lien;
• Duration: 4 years from date assessments became delinquent
• Inferior To: Ad valorem taxes and any liens expressly subordinated in the restrictions
• Superior To: Later filed liens and interests
• There is a statutory redemption period after foreclosure.* Beware the effect on mortgage liens.

Mechanic’s Liens by Affidavit

• Citation: Property Code, 53.158
• Priority: Commencement of construction
• Duration: Suit must be filed to foreclose lien within 2 years after the last day the affidavit could have been filed, or within 1 year after completion, abandonment or termination of construction(non residential). Suit must be filed to foreclose lien within 1 year after the last day the affidavit could have been filed, or within 1 year after completion, abandonment or termination of construction(residential).
• Inferior To: Ad valorem tax liens; liens and interests filed before commencement of construction
• Superior To: Later filed liens and interests

Owelty Lien

• Citation: Texas Constitution Art. XVI, Sect. 50 (homestead)
• Priority: Based upon date of instrument creating lien
• Duration: 4 years from date of maturity of the obligation, or from the date of maturity and acceleration of the debt
• Inferior To: Ad valorem tax liens; pre existing liens and interests
• Superior To: Later created liens and interests

Other Liens

• US Judgment Liens -- 20 years, renewable for 20 years
• State Court Judgment Liens -- Money judgments – 10 years renewable for 10 years
• Federal Tax Liens -- 10 years (+30 days); can be refiled
• State Tax Liens --
• Estate Tax Lien -- Federal 10 years
• State Inheritance Tax Liens --
• Mechanics Liens -- ___ if homestead; ___ for non-homestead property unless action to foreclose is commenced
• Financing Statements -- 5 years; 30 years for Manufactured Housing
• Mortgages -- 4 years from Maturity Date
• HOA Liens --
• Condominium assessments --
• Child Support Liens --

Odd Stuff

• Underwriter can sign a release affidavit after settlement agent has paid the loan and given lender notice that the loan was paid, no release has been sent by lender, and that the affidavit is being filed as a release. Proof of payment must be attached to the letter to the lender.
• Texas practices are highly regulated with details set forth in the Texas Basic Manual for Writing of Title Insurance
• General exceptions are not allowed if an insured objects (P-5). Parties in possession is governed by P-3. Mechanic’s liens are governed by P-8. Taxes and rollback taxes are printed in the commitment and policy.
• Texas forms, policies, commitments, binders and endorsements are promulgated by the Insurance Commissioner. After May 1, 2008, they are essentially the ALTA forms with minor variations.
• By law, Texas title insurance policies may not insure marketable title.Texas policies insure good and indefeasible title.
• No usury coverage available.
• Definitions in Texas Rules:
  • Escrow Officer - An attorney, or bona fide employee of either an attorney licensed as an escrow officer, bona fide employee of a title insurance agent, or bona fide employee of a direct operation whose duties include any or all of the following: (1) countersigning title insurance forms; or (2) supervising the preparation and supervising the delivery of title insurance forms; (3) signing escrow checks; or (4) closing the transaction.
  • Closing the Transaction - The investigation made on behalf of a title insurance company, title insurance agent or direct operation before the actual issuance of the title policy to determine proper execution, acknowledgment and delivery of all conveyances, mortgage papers, and other title instruments which may be necessary to the consummation of the transaction and includes the determination that all delinquent taxes are paid, all current taxes, based on the latest available information, have been properly prorated between the purchaser and seller in the case of an Owner’s Policy, the consideration has been passed, all proceeds have been properly disbursed, a final search of the title has been made, and all necessary papers have been filed for record.