Texas Purchase and Sale Issues for Buyers

The Practical Real Estate Lawyer | 13

John Nolan is a shareholder with Winstead PC’, in

Dallas. Since 1973, he has provided clients innovative

legal and business solutions that eciently and eec-

tively deliver the desired results. John’s broad-based

real estate practice encompasses development, work-

outs, portfolio/equity investments and nancing for

clients located across the United States and for interna-

tional companies investing in the United States. John is

active in both the community and the real estate indus-

try and shares his experience with others as a frequent

writer and lecturer at business and legal seminars and

presentations. His broad experience in all business

cycles consistently delivers results that earn him a rep-

utation as an innovative dealmaker. John also serves as

a member of Winstead’s Board of Directors and is chair-

man of the rm’s Real Estate Industry Group.

Ed Peterson is also a shareholder with Winstead PC’c

Dallas oce. He represents developers of real estate,

institutions, investors and lenders in relation to the

development and nancing of vertical and horizontal

mixed-use commercial common interest ownership

projects. He also represents condominium developers

and lenders in various types of residential condomin-

ium projects on a national basis.He represents institu-

tions in connection with distressed real estate assets

and the restructure of both debt and equity, including

multistate portfolios and signicant oce and retail

projects in Texas and other jurisdictions. He is a fellow

of the American College of Real Estate Lawyers and the

American College of Mortgage Attorneys, and is an

industry commentator, having written and spoken at

industry and professional meetings nationwide.

Marni Zarin is a shareholder in Winstead PC’s Houston

oce where she represents commercial, retail and

multi-family developers, owners, lenders, landlords

and tenants in all aspects of commercial real estate

development, construction, nancing and invest-

ments, including negotiating and drafting nancial

documents, purchase and sale agreements, real prop-

erty leases, development and property management

agreements, and easement and declaration docu-

ments. Marni is an active member in real estate indus-

try groups, such as ULI and CREW. She also serves on

boards and committees of Houston community not-

for-prot organizations. .

John Nolan, Ed Peterson, and Marni Zarin

1. INTRODUCTION

Sales of Texas real estate are typically governed by

Texas law and customs. Variances among states some-

times can be signiﬁcant. Consequently, it is important

to understand the local rules and to seek the advice of

local experts to make an informed purchase. While not

intended to be exhaustive, this article will highlight some

of the local matters for buyers of commercial real estate

to keep in mind when entering into a purchase and sale

agreement and, by necessity, will address issues from

both the buyer’s and the seller’s perspective, including

many of the required statutory notices to be given by

the seller in contracts of sale of commercial real estate.

Note that this article focuses on commercial purchase

agreements and does not include any of the required dis-

closures or notices for residential contracts. This article

does not cover entitlements, permits or other possible

land use matters. Although this article sets forth many

of the Texas-speciﬁc doctrines related to purchase and

sale agreements for commercial properties, the authors

highly recommend engaging Texas counsel when draft-

ing and negotiating Texas commercial real property pur-

chase agreements.

2. TITLE

WARRANTY

The typical warranty as to title that Sellers are willing

to provide in Texas and what Texas title companies will

insure is a diﬀerent standard than in many other states.

In Texas, the standard title warranty is “good and inde-

feasible” instead of “good and marketable” or “good and

merchantable”. The distinction originated during the

Great Depression when many properties were sold at

sheriﬀ’s sales. This raised questions of marketability and

14 | The Practical Real Estate Lawyer March 2017

led to Texas adopting the “good and indefeasible” title rule. A representation that the title to the property

is “marketable” or “merchantable” title is not given by Sellers in Texas, and Texas rules related to title

insurance provide for title companies insurance against the “lack of good and indefeasible title.” See Texa s

Form of Owner’s Title Insurance Policy (Form T-1), Covered Risks, Item 3. In contrast, the American

Land Title Association (ALTA) Policy forms provide coverage against “unmarketable title.” See ALTA

Form of Owner’s and Lender’s Policy, Covered Risks, Item 3.

According to Texas courts, “merchantable” title is synonymous with “marketable” title. Alling v. Vander

Stucken, 194 S.W. 443 (Tex.Civ.App.—San Antonio 1917, writ ref’d); see also Lieb v. Roman Dev. Co., 716

S.W.2d 653 (Tex.App. —Corpus Christi 1986, writ ref’d n.r.e.). “Marketable” title (and, therefore, “mer-

chantable” title) is deﬁned by Texas courts as: “[A] title free from reasonable doubt as to matters of law and

fact, such a title as a prudent man, advised of the facts and their legal signiﬁcance, would willingly accept....

[I]t has been held that a title is not marketable if clouded by any outstanding contract, covenant, interest,

lien, or mortgage suﬃcient to form a basis of litigation.” Lund v. Emerson, 204 S.W.2d 639, 641 (Tex.Civ.

App.—Amarillo 1947, no writ); see also Texas Auto Co. v. Arbetter, 1 S.W.2d 334 (Tex.Civ.App.—San Antonio

1927, writ dism’d w.o.j.); Glens Falls Ins. Co. v. State Nat. Bank of El Paso, 475 S.W.2d 386 (Tex.Civ.App.—El

Paso, 1972, writ. ref’d n.r.e). Based upon the deﬁnition in Lund, most property today would not be market-

able; thus, representing as to “indefeasible” title is an acceptable standard within the Texas marketplace.

3. TITLE INSURANCE, ESCROW AND SURVEY

3.1. Title Insurance.

Texas title insurance forms and rates are set by Texas statute and the Texas Land Title Association

(TLTA) regulations and are much more regulated and limited than most other states, including states

which have adopted the standard ALTA policies and forms. See Tex. Ins. Code Ann., Title 11. Title

insurance pricing and rates are set by the TLTA regulations and are not negotiable. The TLTA Title

Insurance Basic Manual, including forms, rate rules, procedural rules, and Title 11 of the Texas

Insurance Code, can be found at: http://www.tdi.texas.gov/title/titleman.html. Because title insurance

regulations in Texas are diﬀerent than in any other state, the authors highly encourage any buyer to

obtain local counsel in evaluating, reviewing and purchasing title insurance in Texas.

3.2. Escrow Procedures.

Texas commercial real estate transactions almost always involve an escrow both to hold the deposit

and to consummate the Closing; although, sometimes the parties will meet face-to-face to close the

transaction. Face-to-face closings are increasingly unusual given the current nature and extent of tech-

nology. Most transactions use the title company as the escrow agent. Attorneys typically do not act as

escrow agents (other than relatively informal arrangements between counsel to hold signature pages

while counterparts are collected pending delivery to the escrow agent).

3.3. Survey Requirements and Certiﬁcation.

The survey requirements and certiﬁcate form in Texas are diﬀerent than the standard ALTA

requirements and form, and each Texas certiﬁcation has a speciﬁc meaning as to what the survey cov-

ers. The Texas Society of Professional Surveying (TSPS) has published a Manual of Practice, which

can be purchased on the TSPS website at: http://www.tsps.org/?page=eManualofPractice. The stan-

dard requirements and obligations related to a survey (and the corresponding certiﬁcations) are pro-

vided by TSPS licensed surveyors and are segregated into Categories and Conditions. Each Category

is divided into four Conditions, and each Category and Condition has speciﬁc requirements, all of

which are set forth in the Manual of Practice.

Texas Purchase and Sale Issues for Buyers | 15

For example, a certiﬁcate by a TSPS licensed surveyor may be as follows:

I, _________________, a Registered Professional Land Surveyor of the State of Texas, do

hereby certify to __________________ that this map correctly represents a survey completed

on the ground in accordance with the Texas Society of Professional Surveyors standards and

speciﬁcations for a Category 1A, Condition II Survey.

In such example, a Category 1A, Condition II Survey means a survey of land located within the

corporate limits of any city, town or village but not in the recognized downtown business district. In

a Condition II survey, a surveyor may determine exterior boundaries, locate individual lots, subdi-

vide property, and deﬁne routes or rights-of-way. A Condition II survey may be used for legal pur-

poses, including title company insurance requirements for deletion of area and boundary exceptions. A

Category 1A Survey has certain requirements for the surveyor to show on a map: boundary locations,

rights-of-way and easement locations, perimeters, information regarding adjacent property owners,

identiﬁcation and location of visible improvements, location and placement of monuments, terrain

features, north arrow, encroachments, water courses, etc. Therefore, the identiﬁcation of the category

and condition of the survey in the surveyor’s certiﬁcate denotes that certain requirements have been

satisﬁed, that certain tasks have been performed by the surveyor and that certain information is shown

on the survey drawing. The listing of speciﬁc ALTA TableA items is not required for the issuance of

title insurance or title endorsements; however, many purchasers and most lenders will require that the

survey be an ALTA survey. Most Texas surveyors will certify as to speciﬁc ALTA Table A items, upon

request. Note that the ALTA/NSPS Standard Requirements were revised, eﬀective February 23, 2016.

4. CLOSING DOCUMENTS; TRANSFER TAXES

4.1. Forms of Documents.

There is no standard form of deed in Texas, although Texas Property Code § 5.022(a) oﬀers a

simple form that may be used for fee simple conveyances with a general warranty. A general warranty

deed, which provides a full warranty of title for the entire history of the property, is typically not used

in commercial transactions. Instead, special warranty deeds, which provide for a warranty from the

Seller with respect to Seller’s period of ownership only, are generally used in commercial transactions.

Special warranty deeds in Texas do not warrant that the grantor has title to the property but merely

assures the grantee against matters suﬀered or created by the grantor. In Texas, a Title Company will

insure title based on conveyance by a special warranty deed or general warranty deed but might not

for conveyances by quit-claim deed or any other deed of lesser warranty. In order to narrow a general

warranty to the special warranty in a deed, the warranty language in the deed should include the

clause: “by, through, or under Grantor, but not otherwise.” The conveyance in deeds in commercial

transactions include the real property, as well as all right, title, and interest of the grantor appurtenant

to the real estate, including, without limitation, the grantor’s interest, if any, in any and all improve-

ments located on the real property, entitlements appurtenant to the real property and rights in adja-

cent streets, alleys, rights of way and any adjacent strips and gores. In addition, deeds often include

restrictions, repurchase rights or rights of reverter.

Texas has certain rules that apply if a deed is to be valid. For instance, the parties should be

named, the intent to convey property must be clear from the wording, the property must be suﬃ-

ciently described, and the deed must be signed and acknowledged by the grantor. Gordon v. W. Houston

Trees, Ltd., 352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The parties may insert any

additional clauses into the deed, so long as such clauses are not in contravention of law. A covenant

of warranty is not required for conveyance; however a conveyance by a quit-claim deed in Texas

16 | The Practical Real Estate Lawyer March 2017

establishes an automatic presumption of a title defect. Therefore, a Purchaser should be extremely

cautious in accepting conveyance or transfer by a quit-claim. An instrument transferring real property

(deeds and deeds of trust) must include a notice at the top of the ﬁrst page in 12-point bold-faced type

or 12-point uppercase letters as follows:

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL BORN

PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING

INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN

REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:

YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.

Tex. Prop. Code § 11.008.

The validity of an instrument is not aﬀected by failure to include such notice, and the County

Clerk cannot refuse to record an instrument that fails to include such notice. Thus, there is no prac-

tical consequence for failure to include this notice; however, the authors recommend including the

notice at the top of the ﬁrst page of any Texas deed or deed of trust.

Other conveyance and closing documents do not require a speciﬁc Texas form but will require an

appropriate acknowledgment in order to ﬁle the document of record.

4.2. Transfer Taxes.

There are no transfer taxes, deed or mortgage taxes or stamp taxes in Texas. There will be nomi-

nal fees (typically per-page fees) for recordation of documents with County Clerks.

5. ROLL-BACK TAXES

5.1. Roll-Back Taxes General Overview.

Real property may be eligible for a tax reduction under Texas Tax Code if such property qualiﬁes

as (1) open space land (land currently devoted principally to agricultural use [deﬁned below] to the

degree of intensity generally accepted in the area and that has been devoted principally to agricultural

use or to production of timber or forest products for ﬁve of the preceding seven years or land that is

used principally as an ecological laboratory by a public or private college or university or land devoted

principally to wildlife management to the degree of intensity generally accepted in the area) (Tex. Tax

Code § 23.51); (2) land used for timber production (Tex. Tax Code § 23.71); (3) land used as a recre-

ational, park or scenic use (land used for individual or group sporting activities, for park or camping

activities, for development of historical, archaeological, or scientiﬁc sites or for the conservation and

preservation of scenic areas) (Tex. Tax Code § 23.81); or (4) airport property (land that is designed to

be used or is used for airport purposes, including the landing, parking, shelter or takeoﬀ of aircraft and

the accommodation of individuals engaged in the operation, maintenance or navigation of aircraft or

of aircraft passengers in connection with their use of aircraft or of airport property) (Tex. Tax Code §

23.91). “Agriculture Use” is deﬁned by statute as: cultivating the soil, producing crops for human food,

animal feed, or planting seed or for the production of ﬁbers; ﬂoriculture, viticulture and horticulture;

raising or keeping livestock; raising or keeping exotic animals for the production of human food or

of ﬁber, leather, pelts or other tangible products having a commercial value; planting cover crops or

leaving land idle for the purpose of participating in a governmental program, provided the land is not

used for residential purposes or a purpose inconsistent with agricultural use; and planting cover crops

or leaving land idle in conjunction with normal crop or livestock rotation procedure; the use of land to

Texas Purchase and Sale Issues for Buyers | 17

produce or harvest logs and posts for the use in constructing or repairing fences, pens, barns or other

agricultural improvements on adjacent qualiﬁed open-space land having the same owner and devoted

to a diﬀerent agricultural use; the use of land for wildlife management; and, provided that the land

used is not less than ﬁve or more than twenty acres, the use of land to raise or keep bees for pollination

or for the production of human food or other tangible products having a commercial value. Tex. Tax

Code § 23.51.

A change in use of property which had qualiﬁed under one of the uses set forth in clauses (1) – (4)

above may trigger an additional tax being imposed on the property (Roll-Back Tax(es)), which is equal

to the diﬀerence between the taxes imposed on the property for each of the ﬁve years preceding the

year in which the change of use occurs and the tax that would have been imposed had the property

been taxed on the basis of market value in each of those years, plus interest at an annual rate of seven

percent calculated from the dates on which the diﬀerences would have become due. Tex. Tax Code §§

23.55 23.76, 23.86, 23.96.

If the property which is the subject of the purchase agreement would qualify under the uses

set forth in clauses (1) - (4) above and the Purchaser intends to change the use of the property after

Closing, Purchaser and Seller will want to allocate the Roll-Back Taxes in the purchase agreement.

This is a business decision, but often the Seller agrees to pay the portion of the Roll-Back Taxes

assessed for the years prior to Closing and the Purchaser agrees to pay the Roll-Back Taxes assessed

on the period after Closing. Often, the parties agree to place a portion of the purchase price, equal to

the total estimated amount of Roll-Back Taxes, in an escrow account at the closing of the transaction.

The parties should provide for the escrow to “burn-oﬀ” by authorizing periodic disbursements of the

escrowed funds to the Seller if the use of the property has not been changed after a certain period of

time after closing. In addition, the escrow agreement should provide for an adjustment or reconcilia-

tion of the amount in escrow at such time as the actual Roll-Back Taxes have been determined.

5.2. Roll-Back Taxes Statutory Notice (Tex. Prop. Code § 5.010).

If the subject property is vacant land, Texas statute requires that a notice regarding the possibility

of Roll-Back Taxes be provided by the Seller in the purchase agreement. Tex. Prop. Code §§ 5.010(a).

However, if the purchase agreement contains a separate paragraph which expressly provides for the

payment of additional ad valorem taxes and interest that become due as a penalty because of the

transfer of the land or a subsequent change in use of the land, no such notice is required. Tex. Prop.

Code §§ 5.010(d). Note that notice is not required for certain transfers, such as: foreclosures or deeds

in lieu of foreclosure; transfers in bankruptcy; estate-related transfers; leasehold interests; security

interests; mineral interests; transfers to a governmental entity; transfers to co-owners of the property;

or transfers to a spouse or person in the lineal line of consanguinity. Tex. Prop. Code §§ 5.010(b) and

(c). In addition, if the purchase agreement expressly provides for the payment of the Roll-Back Taxes

due to the transfer or the change in use, the notice is not required. Tex. Prop. Code §§ 5.010(e).

6. INDEPENDENT CONSIDERATION

One of the essential elements of an enforceable contract under Texas law is consideration. See Roark v.

Stallworth Oil and Gas Inc., 813 S.W.2d 492, 496 (Tex. 1991); see also Fed. Sign v. Tex. S. Univ., 951S.W.2d

401,408 (Tex. 1997), rehearing of cause overruled (Oct. 2, 1997); Smith v. Renz, 840 S.W.2d 702, 704 (Tex.

App.—Corpus Christi 1992, writ denied). If during a certain period set forth in the purchase agree-

ment (such as an inspection period or feasibility period) the earnest money is fully-refundable to the

Purchaser, then until such earnest money becomes non-refundable, no consideration has been provided,

and the contract is unenforceable against the Seller. See Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex.

18 | The Practical Real Estate Lawyer March 2017

App.—Fort Worth 1990, no writ). In addition, if Seller’s only remedy under a contract for Purchaser’s

breach is retention of the earnest money, then no consideration has been provided, and the contract

is an option contract. Paramount Fire Ins. Co. v. Aetna Casualty & Surety Co., 353 S.W.2d 841, 843 (Tex.

1962); Smith v. Hues, 540 S.W.2d 485, 488 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).

A contract where the earnest money is fully refundable would not be enforceable and an option contract

would be revocable by Seller at any time unless the contract is supported by consideration separate and

independent from the purchase price. See Culbertson, supra, at 157. In 2004, the Texas courts adopted the

concept from the Restatement (Second) of Contracts § 87(1)(a), providing that the recitation of purported

nominal (independent) consideration is suﬃcient for consideration under an option contract even if such

nominal consideration is not paid. See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101 (Tex. 2004). Note that

the consideration language in the contract in such case included language that the receipt and suﬃciency

of the consideration was acknowledged and received. It is not yet decided in Texas whether the recita-

tion that independent consideration is due without language acknowledging that the consideration was

received is suﬃcient to make the option enforceable if such consideration is not actually paid. Although

a contract which recites the receipt of nominal consideration is most likely enforceable notwithstanding

the absence of the actual payment or receipt of the nominal consideration, the better practice in Texas

is for the purchaser to actually deliver the consideration. Thus, to ensure that the contract is enforceable

and cannot be revoked by Seller, it has become common practice for the purchase and sale agreement

to recite an option fee or independent consideration and for Purchaser to pay the independent consider-

ation. This is ordinarily a nominal amount of $100-$1,000 and is often a part of the earnest money (such

that if the earnest money is returned to Purchaser, it is returned less the independent consideration, which

is retained by Seller).

7. MINERAL RIGHTS

In certain areas in Texas, it is common for the mineral estate to be severed from the surface estate.

Mineral estates in Texas are superior to the rights of the surface estate. See Humble Oil & Reﬁning Co. v.

Williams, 420 S.W.2d 133 (Tex. 1967); see also Ball v. Dillard, 602 S.W.2d 521 (Tex. 1980). Even absent

an express agreement between the mineral estate owner and the surface estate owner limiting the min-

eral owner’s rights to use the surface, the surface owner has some comfort regarding the right to use

the surface based on the Accommodation Doctrine. The Accommodation Doctrine provides that the

owner of the mineral estate has the right to use as much of the surface and subsurface of the land as

reasonably necessary to enjoy the mineral estate, but such right must be exercised with “due regard” to

the rights of the surface owner. Humble Oil & Reﬁning Co. v. West, 508 S.W.2d 812, 815 (Tex. 1974), cert.

denied, 434 U.S. 875 (1977). In addition, surface owners may use the surface of the land in any man-

ner that is not inconsistent with the mineral owner’s use of its estate, and mineral owners may only use

the surface as is reasonably necessary. Under the Accommodation Doctrine, a mineral owner must use

a reasonable alternative for its activities related to the minerals if the planned activity would impair

or preclude an existing use by the surface owner. See Getty Oil v. Jones, 470 S.W.2d 618 (Tex. 1971).

Even with the relative assurance provided by the Accommodation Doctrine, there are many issues

associated with mineral rights and the fact that the mineral estate is the dominant estate, including,

but not limited to, title insurance coverage and endorsements, aﬃdavits of non-production, oil and gas

leases and lessee rights, drilling sites, surface waivers and no-drilling ordinances. The authors recom-

mend that any seller or purchaser of property located in an area where the mineral estate is commonly

severed from the surface estate engage experienced oil and gas counsel and/or a certiﬁed landman.

8. CERTAIN REMEDIES AND DEFENSES

Texas Purchase and Sale Issues for Buyers | 19

8.1. Liquidated Damages and Speciﬁc Performance

8.1.1. Liquidated Damages.

Contracts for the purchase of real property typically include provisions for liquidated damages

if a party fails to timely close the transaction or timely provide certain items. In order to enforce

a liquidated damage provision in a real estate contract, the Court must ﬁnd that the harm caused

by the breach is incapable or diﬃcult of estimation and that the amount of liquidated damages

called for is a reasonable estimate of just compensation. Phillips v. Phillips, 820 S.W.2d 785, 788

(Tex. 1991). The party claiming the liquidated damages provision is unenforceable has the burden

to prove that the provision is unenforceable as an aﬃrmative defense. Urban TV Network Corp.

v. Creditor Liquidity Solutions, L.P., 277S.W.3d 917, 919 (Tex. App.—Dallas 2009, no pet.) A party

can show that a liquidated damages provision is unreasonable by proving that the actual damages

incurred were much less than the amount of the sales price. Garden Ridge, L.P. v. Advance Int’l, Inc.,

403 S.W.3d 432, 438 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Liquidated damages

clauses must attempt to quantify the actual damages that would be caused by a failure to release

the earnest money and not merely assume the earnest money should be increased by some mul-

tiple even though the parties agreed in the contract that the earnest money represents the actual

damages caused by the breach of the agreement. Magill v. Watson, 409 S.W.3d 673, 681 (Tex.

App.—Houston [1st Dist.] 2013, no pet.). Importantly, parties to a contract are allowed to stipu-

late to the amount of damages to be recovered in the event of a breach (i.e. the earnest money).

See Birdwell v. Ferrell, 746 S.W.2d 338, 340 (Tex. App.—Austin 1988, no writ). Thus, a stipulated

damage clause is enforceable whereas a liquidated damage clause may not be, especially where the

liquidated damages are a multiple of the stipulated damages. As a result, it is important to draft

a purchase agreement for real estate to establish either stipulated damages or an agreement by

all parties as to a liquidated damage formula indicating that actual damages would be diﬃcult or

impossible to calculate and that the formula represents a reasonable estimate of actual damages in

the event of a breach.

8.1.2. Damages or Speciﬁc Performance.

Another common provision in real estate purchase contracts relates to the non-breaching par-

ty’s option to sue for damages or for speciﬁc performance. In the context of a real estate transac-

tion, an order requiring the breaching party to proceed with the transaction is an ordinary result

because each piece of real estate is presumed to be unique such that money damages may be

diﬃcult or impossible to calculate. See, e.g. Scott v. Sebree, 986 S.W.2d 364, 370 (Tex. App.—Austin

1999, pet. denied); Thanksgiving Tower Partners v. Anros Thanksgiving Partners, 64 F.3d 227, 232 (5th

Cir. 1995). Speciﬁc performance is both an equitable remedy that may be awarded for a breach of

contract and an alternative remedy to damages. Goldman v. Olmstead, 414 S.W.3d 346, 361 (Tex.

App.—Dallas 2013, pet. denied). A party suing for breach of contract involving the sale of real

estate must elect to sue for either money damages or speciﬁc performance. Id. If a party sues for

damages, it has elected to treat the contract as terminated by the breach and to seek compensa-

tion for that breach. Id. On the other hand, if the party sues for speciﬁc performance, it aﬃrms

the contract and seeks assistance from the trial court in eﬀectuating the contract. Id. In narrow

circumstances, the relief associated with speciﬁc performance may include monetary compensa-

tion as well, where the compensation is incident to a decree for speciﬁc performance and does

not amount to legal damages but is necessary to place the parties in the same position as though

the contract had been fully performed. Id. at 361-62. The trial court has great discretion in mak-

ing an equitable decision to equalize any losses occasioned by the delay caused by the breach by

oﬀsetting such losses with monetary payments. Id. at 362. These incidental damages may include

20 | The Practical Real Estate Lawyer March 2017

things like lost rents, proﬁts, delay costs and similar items. Id. A party seeking speciﬁc performance

must plead and prove compliance with the contract, including tender of performance and that it

was ready, willing and able to perform the contract. See Chevron Phillips Chem. Co. LP v. Kingwood

Crossroads, L.P., 346 S.W.3d 37, 61 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Speciﬁc

performance is generally not allowed if the party seeking speciﬁc performance has committed a

material breach of the contract. Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—Houston [14th

Dist.] 2005, pet. denied).

8.2. Limitation on Survival Periods.

The Texas Civil Practices and Remedies Code limits the period of time for which parties can

mutually agree to limit the survival of claims. The Statute states, “[A] person may not enter a stipula-

tion, contract, or agreement that purports to limit the time in which to bring suit on the stipulation,

contract, or agreement to a period shorter than two years.” Tex. Civ. Prac. & Rem. Code § 16.070(a).

Any clause that establishes a shorter period is void. If the clause limiting the survivability of the rep-

resentations or other matters in the contract is determined to be void under the Statute, the statute of

limitations of four years for breach of contract will apply. Tex. Civ. Prac. & Rem. Code, § 16.004.

Practice Tip. Make sure that the survival period for representations and warranties in the purchase

agreement is not limited to less than two years and a day. If the survival period is shorter than two

years and a day, make sure that the contract contains a provision regarding severability of provisions,

such that if the limitation of survival is found to be invalid, the contract will be construed as if that

provision had never been contained in the contract. The provision may also include a notice period

that is shorter than the two-year time period for bringing suit, such that the purchaser must notify the

seller of a claim within a shorter period (e.g. six months after closing) but may bring suit for any claim

for which purchaser has provided notice at any time prior to the two-year period. If purchaser fails

to timely provide such notice, then the argument is that the purchaser failed to give notice and, thus,

does not have a claim.

8.3. Attorneys’ Fees.

In a recent case from the Fourteenth Court of Appeals in Houston, Alta Mesa Holdings, L.P. v. Ives,

488S.W.3d 438 (Tex. App.—Houston [14th Dist.] 2016, pet. denied), the Court decided that a limited

liability company is not an “individual” or “corporation” for the purposes of recovery of attorneys’

fees under Texas Civil Practice and Remedies Code § 38.001. This is following a case in 2014 where

Texas Courts came to a similar conclusion for partnerships. See Fleming & Assocs., L.L.P. v. Barton, 425

S.W.3d 560 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). For years, Texas businesses have

entered contracts that are silent on attorneys’ fees, relying on the premise that the Court would award

fees under the Texas Civil Practice and Remedies Code § 38.001. The plain language of the Statute

allows for fees against “an individual or corporation.” The Court applied a strict interpretation of the

language that attorneys’ fees are not recoverable by the prevailing plaintiﬀ in a breach of contract

action against a limited liability company because neither a limited liability company nor partnership

is an individual or corporation. Therefore, it is strongly recommended to include express provisions

for recovering attorneys’ fees in a contract for sale when one of the parties is a partnership or a limited

liability company.

8.4. Waiver of Jury Trial.

Since 2004, the Texas Supreme Court endorsed and expressly authorized waivers of a jury trial. In

re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004). As long as the waiver is voluntary, knowing

and intelligent, with full awareness of the legal consequences, a jury waiver will be enforced. Id. at 132.

Texas Purchase and Sale Issues for Buyers | 21

There is no presumption against jury waivers. Therefore, the party seeking to enforce the contractual

waiver does not have the burden to show the opposing party knowingly and voluntarily agreed to

waive its right to a jury. In re Bank of Am., N.A., 278 S.W.3d 342, 343 (Tex. 2009). A conspicuous waiver

is prima facie evidence that a party knowingly and voluntarily waived its constitutional right to a jury

trial. Id. A claim of fraudulent inducement will not avoid the jury waiver unless the allegation relates

to the waiver provision itself. Id. at 345.

Practice Tip. To avoid the expense and delay associated with a challenge to a jury waiver, make sure

it is conspicuous in a purchase and sale agreement. Large font, bolded in all capital letters should suf-

ﬁce. The key is to make the waiver distinct and obvious from other standard provisions in the contract.

9. EXPRESS NEGLIGENCE RULE

A party’s agreement to indemnify another party for such indemniﬁed party’s own negligence is unen-

forceable in Texas unless the indemnity for such negligence is expressly stated within the “four corners” of

the contract. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). Indemniﬁcation language

should provide, for example, “Seller indemniﬁes Purchaser for Purchaser’s own negligence” as opposed

to: “Seller indemniﬁes Purchaser for all matters occurring prior to Closing.” The latter would not indem-

nify Purchaser if the damages to be indemniﬁed were caused by Purchaser’s negligence. In addition, the

express negligence must be conspicuous, as measured by the standard set forth in Tex. Bus. & Com. Code

§ 1.201(b)(10): “so written, displayed, or presented that a reasonable person against which it is to operate

ought to have noticed it.” A term may be conspicuous if: (a) the heading is in capital letters equal to or

greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of

the same or lesser size; (b) the language is in larger type than the surrounding text, or in contrasting type,

font, or color to the surrounding text of the same size; or (c) the language is set oﬀ from surrounding text

of the same size by symbols or other marks that call attention to the language. Tex. Bus. & Com. Code

§ 1.201(b)(10).

The following is a sample of language which should satisfy the express negligence rule, if such lan-

guage is added in the appropriate place within the indemnity provision and such language is conspicuous

(i.e., in a diﬀerent or larger font, bold-face type, capital letters, italics or underlined):

THE INDEMNITY SET FORTH ABOVE SHALL APPLY TO DAMAGES, LOSSES OR

CLAIMS CAUSED BY THE NEGLIGENCE OF PURCHASER OR PURCHASER’S

PARTNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.

10. TEXAS

DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT

10.1. DTPA General Overview.

The Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) protects consumers from

false, misleading and deceptive business practices, unconscionable actions and breach of warranty

and to provide eﬃcient and economical procedures to secure such protection. The DTPA provides

consumers with a cause of action for deceptive trade practices without the burden of proof required

in common-law fraud or breach of warranty suits. Tex. Bus. & Com. Code § 17.41 et seq.

The DTPA does not apply to entities that have assets of $25,000,000 or more as the term

“Consumer” (as deﬁned in the DTPA) does not include a business consumer that has assets of, or that is

owned or controlled by a corporation or entity with assets of, $25,000,000 or more. Tex. Bus. & Com.

Code § 17.45(4). Thus, the DTPA does not apply to most commercial property transactions between

22 | The Practical Real Estate Lawyer March 2017

sophisticated parties represented by attorneys. In addition, the DTPA does not apply to a claim arising

out of a written contract if: (1) (a) the contract relates to a transaction, a project, or a set of transactions

related to the same project involving total consideration by the consumer of more than $100,000; (b) in

negotiating the contract, the consumer is represented by legal counsel who is not directly or indirectly

identiﬁed, suggested, or selected by the defendant or an agent of the defendant; and (c) the contract

does not involve the consumer’s residence; or (2) a project, or a set of transactions relating to the same

project, involving total consideration by the consumer of more than $500,000, other than a cause of

action involving a consumer’s residence. Tex. Bus. & Com. Code §§ 17.49(f) and (g).

10.2. Waiver of DTPA.

Blanket attempts to waive the protections of DTPA are against public policy; however the DTPA

states that a waiver is valid and enforceable if:

(1) the waiver is in writing and is signed by the consumer;

(2) the consumer is not in a signiﬁcantly disparate bargaining position; and

(3) the consumer is represented by legal counsel in seeking or acquiring the goods or services. Tex.

Bus. & Com. Code § 17.42(a).

Most commercial transactions will satisfy the criteria set forth above.

In addition the waiver must be:

(1) conspicuous and in bold-face type of at least 10 points in size;

(2) identiﬁed by the heading “Waiver of Consumer Rights,” or words of similar meaning; and

(3) in substantially the same form as set forth in the statute. Tex. Bus. & Com. Code § 17.42(c).

11. WATER DISTRICTS

11.1. Water District General Overview.

Properties in Texas which are outside of municipal boundaries may be part of a Water District

(pursuant to the Texas Water Code or the Texas Constitution, See Tex. Water Code § 49 and article

III, or Section 59, article XVI of the Texas Constitution). Water Districts include municipal utility

districts (MUDs), water control and improvement districts (WCIDs), special utility districts (SUDs)

and river authorities. A Water District is a local, governmental entity that provides limited services to

its customers and residents.

A general guide to Water Districts can be found on the website of the Texas Commission on

Environmental Quality at: https://www.tceq.texas.gov/waterdistricts.

MUDs provide water, sewage, drainage and other services and are legally empowered to engage in

conservation, irrigation, electrical generation, ﬁreﬁghting, solid waste collection and disposal (includ-

ing recycling) and recreational activities (such as parks, swimming pools and sports courts). MUDs

cannot issue bonds to pay for parks or recreational facilities but can charge user fees. WCIDs have

broad authority to supply and store water for domestic, commercial and industrial use, to operate san-

itary wastewater systems and to provide irrigation, drainage and water quality services. SUDs provide

water, wastewater and ﬁreﬁghting services but are not authorized to levy taxes. River Authorities oper-

ate major reservoirs and sell untreated water on a wholesale basis, are responsible for ﬂood control,

Texas Purchase and Sale Issues for Buyers | 23

soil conservation and protecting water quality and may generate hydroelectric power, provide retail

water and wastewater services and develop recreational facilities.

There are required statutory notices and other documentation related to Water Districts with

respect to the transfer of any property which is located in a Water District. The authors recommend

that the Seller of property located within a Water District engage specialized water district counsel.

11.2. Water District Statutory Notices (Tex. Water Code § 49.452).

Any person who proposes to sell or convey real property located in a district created under Chapter

49 of the Texas Water Code that is providing water, sanitary sewer, drainage and ﬂood control or

protection facilities or services, or any of these facilities or services that have been ﬁnanced or are pro-

posed to be ﬁnanced with bonds of the Water District payable in whole or part from taxes of the Water

District, or by imposition of a standby fee, is required to deliver, and the Purchaser is required to sign,

one of three the statutory notices relating to the tax rate, bonded indebtedness, or standby fees of the

Water District. This notice shall be given to the Purchaser prior to execution of a binding contract either

separately or as an addendum or paragraph of a purchase contract. It may be argued that the execu-

tion of a binding contact does not occur until after all option and feasibility periods have expired. The

proper notice form is based upon whether the property is within the City limits, outside the City limits

but within the extraterritorial jurisdiction or home-rule municipality or outside the City limits and

outside the extraterritorial jurisdiction or home-rule municipality. Notice is not required for transfers

by foreclosure or deed in lieu of foreclosure, estate-related transfers or transfer to a governmental

entity.

In the event a contract of purchase and sale is entered into without Seller providing the notice,

Purchaser shall be entitled to terminate the contract at any time prior to the notice being given. Tex.

Water Code §49.452(f). Purchaser shall sign the notice or purchase contract including such notice to

evidence the receipt of notice.

In addition, at Closing, a separate copy of such notice with current information shall be executed

and acknowledged by Seller and Purchaser and recorded in the deed records of the county in which

the property is located. If a conveyance is made without the required notices, Purchaser may institute

a suit for damages in the amount of all costs relative to the purchase of the property plus interest and

reasonable attorneys’ fees (in which case, upon payment of all damages to Purchaser, Purchaser shall

reconvey the property to Seller) or for damages in an amount not to exceed $5,000, plus reasonable

attorneys’ fees. Tex. Water Code §§ 49.452(o) and (p).

Practice Tip. It is helpful to review a recent tax statement from the property or a prior title commit-

ment (Schedule C) or tax certiﬁcate in order to determine if the property is located in a Water District.

If the notice is not provided in the purchase agreement, itself, but the Seller or counsel determine after

contract execution but prior to the expiration of the option period that the property is located within

a Water District, notice should be provided to Purchaser before the expiration of the option period.

12. STATUTORY DISCLOSURES

Texas statutes have certain requirements regarding Seller disclosures in the purchase agreement and/

or at Closing. Some of these are discussed above (see, e.g., Roll-Back Taxes and Water District disclosures).

The following are additional required disclosures:

24 | The Practical Real Estate Lawyer March 2017

12.1. Annexation Notice (Tex. Prop. Code § 5.011).

Notice must be provided with respect to the transfer of any property located outside the boundar-

ies of a municipality before the date the purchase agreement binds the Purchaser and may be given

separately or as part of the contract. Notice is not required for transfers by foreclosures or deeds in

lieu of foreclosure; transfers in bankruptcy; transfers pursuant to the probating of an estate; leasehold

interests; security interests; mineral interests; transfers to a governmental entity; transfers to co-own-

ers of the property; transfers to a spouse or person in the lineal line of consanguinity; or transfers of

real property that is located wholly within the municipality’s boundaries.

If the contract is entered into without Seller providing the notice, Purchaser may terminate the

contract for any reason on or before the earlier of: (1) seven days after the date Purchaser receives the

notice; or (2) the date the transfer occurs.

12.2. Water and Sewer Service Notice (Tex. Water Code § 13.257).

For property located within a certiﬁcated service area of a utility service provider (a retail public

utility other than a Water District), Seller and Purchaser must execute a notice regarding the possible

extension of water or sewer services. The notice must be executed prior to the date the purchase agree-

ment binds Purchaser and may be completed as part of the purchase agreement or via a separate docu-

ment. At Closing, Seller and Purchaser must execute and acknowledge a separate copy of the notice

and record such notice in the real property records of the county in which the property is located.

Notice is not required for transfers by foreclosures or deeds in lieu of foreclosure; transfers in bank-

ruptcy; transfers pursuant to the probating of an estate; leasehold interests; security interests; mineral

interests; transfers to a governmental entity; transfers to co-owners of the property; transfers to a

spouse or person in the lineal line of consanguinity; or transfers of real property that is located wholly

within the municipality’s boundaries or of real property that receives water or sewer service from a

utility service provider on the closing date.

If Seller fails to provide the notice, Purchaser may terminate the contract; however, if Seller pro-

vides the notice at or before the Closing and Purchaser elects to close despite Seller’s failure to pro-

vide the notice, Purchaser is deemed to have waived its right to terminate and recover damages. If a

conveyance is made without the required notices, Purchaser may institute a suit for damages in the

amount of all costs relative to the purchase of the property plus interest and reasonable attorneys’ fees

(in which case, upon payment of all damages to Purchaser, Purchaser shall reconvey the property to

Seller) or for damages in an amount not to exceed $5,000, plus reasonable attorneys’ fees.

12.3. Open Beaches Act Notice (Tex. Nat. Res. Code § 61.025).

A person who transfers property located seaward of the Gulf Intracoastal Waterway to its south-

ernmost point and then seaward of the longitudinal line also known as 97 degrees, 12’, 19” which runs

southerly to the international boundary from the intersection of the centerline of the Gulf Intracoastal

Waterway and the Brownsville Ship Channel must include in any contract for conveyance a statement

in substantially the form set forth in the Texas Natural Resources Code. If the statement is not included

in the contract, the statement must be delivered to, and receipt thereof acknowledged by, Purchaser not

later than ten calendar days prior to Closing. Failure to provide such notice is grounds for Purchaser

Texas Purchase and Sale Issues for Buyers | 25

to terminate the contract, and upon termination, any earnest money shall be returned to Purchaser. In

addition, failure to provide such notice is deemed to be a deceptive trade under the DTPA.

Note that notice is not required for transfers of mineral, leasehold or security interests.

12.4. Coastal Area Property Notice (Tex. Nat. Res. Code § 33.135).

A person who transfers property adjoining and abutting the tidally inﬂuenced waters of the State

of Texas must include a notice thereof as a part of the contract. If the statement is not included in the

contract, the statement must be delivered to Purchaser for execution and acknowledgment of receipt

before the conveyance instrument is recorded. Failure to provide such notice is grounds for Purchaser

to terminate the contract, and upon termination any earnest money shall be returned to Purchaser. In

addition, failure to provide such notice is deemed to be a deceptive trade under the DTPA.

Note that notice is not required for transfers of mineral, leasehold or security interests.

12.5. Underground and Aboveground Storage Tank Notice (Tex. Admin. Code § 334.9 of

Title 30).

Any person who sells or otherwise legally conveys a tank (or tank system) which is designed or

intended to be installed as an underground storage tank (UST) or an aboveground storage tank (AST)

must provide Purchaser with written notiﬁcation of a tank owner’s obligations relative to the Texas

Commission on Environmental Quality’s (TCEQ) tank registration, compliance self-certiﬁcation and

construction/installation notiﬁcation provisions under Tex. Admin. Code §§ 334.7, 334.127, 334.8,

334.6 and 334.126. The notice required pursuant to this statute applies to the transfer of real property

where USTs or ASTs are located. The notice must be provided prior to the transfer of the Property.

The written notice must include the names and addresses of Seller and Purchaser, the number of

tanks involved, a description of each tank (capacity, tank material and product stored, if applicable)

and the TCEQ’s designated facility identiﬁcation number (if the entire facility is being conveyed).

Please refer to Tex. Water Code § 26.346(a) for exceptions to registration.

12.6. Agricultural District Notice (Tex. Agric. Code § 60.063).

Any person who transfers property located in a Texas Agricultural Development created under the

Agricultural Development District Act (an Agricultural District) must give written notice to Purchaser

that the property is located in the Agricultural District. The notice must be given to Purchaser prior to

execution of a binding contract of sale and purchase either as paragraph or addendum of a purchase

contract or through a separate document, and Purchaser shall sign the notice as evidence of receipt.

At Closing, Purchaser and Seller shall execute and acknowledge a separate copy of the notice with

current information about the district and its right to impose assessments on land within its bound-

aries, and such notice shall be recorded in the deed records of the county in which the property is

located.

The form of notice shall be prescribed by the board of the applicable Agricultural District.

Notice is not required if: (1) Seller is obligated under a written contract to furnish Purchaser with

a title insurance commitment before Closing; and (2) Purchaser is entitled to terminate the contract

26 | The Practical Real Estate Lawyer March 2017

because the property is located in an Agricultural District. In addition, notice is not required if there

is no notice creating the Agricultural District in the real property records.

12.7. Notice of Water Level Fluctuations (Tex. Prop. Code § 5.019).

A Seller of property adjoining an impoundment of water, including a reservoir or lake, constructed

and maintained under Chapter 11 of the Texas Water Code, that has a storage capacity of at least

5,000 acre-feet at the impoundment’s normal operating level shall provide a notice to Purchaser prior

to the eﬀective date of the purchase agreement binding the Purchaser to purchase the Property.

If the contract is entered into without the notice being provided, Purchaser may terminate the

contract on or before seven days after Purchaser receives the notice from Seller or otherwise receives

the information that would have been set forth in a notice. If Seller fails to provide the notice before

Closing and Seller had actual knowledge that the water level ﬂuctuates for various reasons, Purchaser

may bring an action against Seller for misrepresentation.

12.8. Deed Restrictions Notice (Houston only).

Texas Local Government Code Section 212.155 provides that the governing body of the munici-

pality may require, in the manner prescribed by law for oﬃcial action of the municipality, any person

who sells or conveys restricted property located inside the boundaries of the municipality, to give the

Purchaser written notice of the restrictions and notice of the municipality’s right to enforce compli-

ance. Tex. Local Gov’t. Code § 212.155. To the authors’ knowledge, Houston is the only municipality

in the State of Texas which has made such election.

The notice must be executed by both Purchaser and Seller and recorded in the real property

records of the county in which the property is located. Tex. Local Gov’t. Code § 212.155; see also

Houston, Tex., Code of Ordinances ch. 10, art. XV, § 10-556(b). The notice must contain the fol-

lowing: (1) the name of each purchaser; (2) the name of each seller; (3) a legal description of the

property; (4) the street address of the property; (5) a statement that the property is subject to deed

restrictions and the municipality is authorized to enforce the restrictions; (6) a reference to the vol-

ume and page, clerk’s ﬁle number, or ﬁlm code number where the restrictions are recorded; and (7) a

statement that provisions that restrict the sale, rental, or use of the real property on the basis of race,

color, religion, sex or national origin are unenforceable. The form of the notice shall be as set forth in

Exhibit A to Ordinance No. 89-1312. Houston, Tex., Code of Ordinances ch. 10, art. XV, § 10-556(b).

Notice is not required for conveyances with respect to foreclosures or deeds in lieu of foreclosure,

deeds of trust, auction sales conducted by a public oﬃcial pursuant to an order of a court of competent

jurisdiction or sales to a governmental entity. Houston, Tex., Code of Ordinances ch. 10, art. XV,

§ 10-556(a).

Failure of Seller to deliver the notice is a misdemeanor punishable by up to a $500 ﬁne; however,

such failure does not aﬀect the validity or enforceability of the sale or conveyance of the property or

the validity or enforceability of restrictions covering the property. Houston, Tex., Code of Ordinances

ch. 10, art. XV, § 10-556(c); see also Tex. Local Gov’t. Code § 212.155(f).

Practice Tip. Request the title company to provide the then-current form of notice.

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