Unsworn Declarations – Avoiding the requirement of a Notary in Texas

 

The Eighty Second Texas Legislature issued a statute that allows and unsworn declaration instead of a sworn declaration …. or affidavit when required by statute, rule, order, or legal requirement.

What is require is that the declaration be in writing, subscribed by the person making the declaration as true under penalty of perjury.
(d) Except as provided by Subsections (e) and (f), an unsworn declaration made under this section must include a jurat in substantially the following form:

(b) This section does not apply to a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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CIVIL PRACTICE AND REMEDIES CODE

TITLE 6. MISCELLANEOUS PROVISIONS

CHAPTER 132. UNSWORN DECLARATIONS

Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.
(b) This section does not apply to a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public.
(c) An unsworn declaration made under this section must be:
(1) in writing; and
(2) subscribed by the person making the declaration as true under penalty of perjury.
(d) Except as provided by Subsections (e) and (f), an unsworn declaration made under this section must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
date of birth is _________________, and my address is
_____________, ____________, _________, ____________,
(Street) (City) (State) (Zip Code)
and __________________. I declare under penalty of
(Country)
perjury that the foregoing is true and correct.
Executed in _______ County, State of ________, on the ________ day of ________, ________.
(Month) (Year)
____________________
Declarant”
(e) An unsworn declaration made under this section by an inmate must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
date of birth is _____________________, and my inmate
identifying number, if any, is __________________. I
am presently incarcerated in ________________________
(Corrections unit name)
in _____________, _________, _______, ____________. I
(City) (County) (State) (Zip Code)
declare under penalty of perjury that the foregoing is true and correct.
Executed on the _____ day of ________, _______.
(Month) (Year)
____________________
Declarant”
(f) An unsworn declaration made under this section by an employee of a state agency or a political subdivision in the performance of the employee’s job duties, must include a jurat in substantially the following form:
“My name is __________ _________ ____________, my
(First) (Middle) (Last)
and I am an employee of the following governmental agency: __________________. I am executing this declaration as part of my assigned duties and responsibilities. I declare under penalty of perjury that the foregoing is true and correct.
Executed in _____________ County, State of _________, on the _____ day of ________, _______.
(Month) (Year)
____________________
Declarant”

Added by Acts 1987, 70th Leg., ch. 1049, Sec. 60, eff. Sept. 1, 1987.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.011, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 847 (H.B. 3674), Sec. 1, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 515 (S.B. 251), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 946 (H.B. 1728), Sec. 1, eff. June 14, 2013.

Real Property Gifts

 

I recently received another call from a lady that wanted to “add her son’s name” to the deed, thinking that this would provide some benefit.  Therefore, I had to pull out my comments from an old post,  review and repost them.  The advice still stands:  A method that is NOT a solution to this scenario (below)  is to “Add [someone’s name] to the title”. This solves nothing and brings in additional problems.  We use other procedures and documents.

Often, in a San Antonio practice, we have people call in and ask to transfer a property from a parent to the child, children, or grandchildren. Of course there are other variations within the family, perhaps from an aunt to a niece, or from an adult child to a parent that needs a small home for retirement.
These could be sales from one family member to another, but are often made as “gifts”. There are a few considerations that we commonly make. This attorney has a few practices and preferences, but of course, the final decisions are left up to the client, so long as honesty is involved and nobody is misinformed as to the duties, responsibilities, and results.

The word “clients” brings up the first question. Who is the client?, the donor, the donee, or even a spouse of one of those parties. My preference would be to have the donor as the client, especially in a “gift” situation. If the parties contact me together, I can have joint representation, so long as there is a written agreement disclosing any conflicts. However, sometimes we represent solely the grantee, but whatever representation we use, it must be made clear to all parties.
Transfers of property are generally done by “Special” Warranty Deed, which assures that the grantor has or warrants title is good, so long as he/she had it, but does not ensure that the title had no defects when it was received by the grantor. This would be appropriate for a “gift” situation, not a purchase, which would require a “General” Warranty Deed.
We would have the same considerations as to condition of the property. In a gift, I would expect that the donee would take the property “as is”, but the matter should be discussed and documented.
Thirdly, title reports and insurance are usually not called for in the case of a gift, but that point should be reviewed as well.
I don’t like the situation where property in which an elderly person lives is transferred to a younger family member (“to avoid probate”), and then the younger person sells the property or otherwise evicts grandma. I don’t think we’ve had that situation on transfers in our office, but that is why I like to consider that the grantor retain a “life estate”. This allows the grantor to reside in the property so long as they live, and even move out and rent it out for additional income. Then, at the time that they pass away, the life estate terminates, and full title is good in the grantor.
In analyzing the possibility of death, the parties should also review the possibilities and eventualities in the life of the grantee, and whether that makes any difference in the gift. Transferring property off, and then forgetting about the possibilities of the other person, much less predicting and controlling them, is just fine with me. However, one should understand the contingencies of death of the grantee, or bankruptcy, marriage, and/or divorce, and should either make provisions, or be resigned to not regret the transfer. These deeds are irreversible and irrevocable.
Now, does the “gift” create a tax issue? Under the Internal Revenue Code, a gift (unless exempt) creates a tax liability for the DONOR, the one who gives the property. Now, settle down, because under current law, amounts up to about Five Million Dollars are not taxable. Even previous laws held this exemption up at a Million Dollars or so. Therefore, most of these homes that are being given between families do not reach the exemption amount. Below that, there is an “exclusion” amount, and gifts below that amount do not require any tax return or consideration at all. The exclusion amount is $14,000 per year, can be doubled by spouses, and can be used once annually for each donee. In other words, transferring a property worth $52000 or less could be handled by each spouse giving $14000 of the value to two donees.
Another way to use the $14000 exclusion is to a.) give a percentage of the property to the donee every year (like 20% of a $65000 property every year), or b.) give the annual exclusion for this year, with donee signing an owner carried mortgage for the difference, and then donating or forgiving a reduction in the balance every year, that is equal to the $14000 exclusion.
This does not mean that amounts over $14000 are taxable. They are covered by the donor’s lifetime exemption (up to $5+ mil, remember), but legally require a gift tax return filing, Form 706.

Revising this post for 2017: For 2017, the estate and gift tax exemption is $5.49 million per individual, up from $5.45 million in 2016. That means an individual can leave $5.49 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield just shy of $11 million ($10.98 million) from federal estate and gift taxes. The annual gift exclusion remains at $14,000 for 2017.  per Forbes

Now, ad valorem taxes are a different consideration and the effects need to be contemplated as well. “Ad Valorem” taxes are the local real property taxes assessed by the County, the City, and/or the school district, as well as various other entities. A property owned by an elderly person may have tax reductions and protections that would not continue when transferred to a younger person. Also, if the new “owner” is not a resident of the property, they will not be able to declare it a “homestead” and apply for a tax reduction given to those types of properties.
Lastly, donors should consider Medicaid issues, as to whether a later need for Medicaid services will be denied because of the disposition of the property, but that is a large, complicated matter meant for another column.
David Bosworth
Attorney
San Antonio
210-805-9882

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Service of Citation Notice When Filing an Application for Issuance of Letters of Administration

Recently I was called on to assist an heir in recovering property she had inherited after the passing of her mother and father.  Filing to application for appointment of a personal representative (administrator) caused me to review the required Service of Citation or Notice in a probate case like this.

The statute controlling this is CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING OF ADMINISTRATION (full text below).

The required notice is done by posting of the Application by the Sheriff.  The fee for this is collected, and the process is initiated by the Probate Clerk when the Application is filed.

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Full Text:

CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING OF ADMINISTRATION

Sec. 303.001. CITATION ON APPLICATION FOR ISSUANCE OF LETTERS OF ADMINISTRATION. (a) On the filing with the clerk of an application for letters of administration, the clerk shall issue a citation to all parties interested in the estate.
(b) The citation required by Subsection (a) shall be served by posting and must state:
(1) that the application has been filed;
(2) the nature of the application;
(3) the decedent’s name;
(4) the applicant’s name;
(5) the time when the court will act on the application; and
(6) that any person interested in the estate may appear at the time stated in the citation to contest the application.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 303.002. COURT ACTION PROHIBITED BEFORE SERVICE OF CITATION. A court may not act on an application for the issuance of letters of administration until service of citation has been made in the manner provided by this chapter.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Sec. 303.003. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED SERVICE. Notwithstanding any other provision of this chapter, if an attempt to make service under this chapter is unsuccessful, service may be made in the manner provided by Rule 109 or 109a, Texas Rules of Civil Procedure, for the service of a citation on a party by publication or other substituted service.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Texas Landlord-Tenant Statutes, (Property Code, Title 8), Chapter 91, Provisions Applicable to All Landlords and Tenants (Residential and Commercial)

Texas Landlord-Tenant Statutes, (Property Code, Title 8), Chapter 91, Provisions Applicable to All Landlords and Tenants (Residential and Commercial)

This is part of the Real Property Law Class for Real Estate Salespersons and Brokers.

First, we review what every Principal needs to know.

Sec. 91.001. NOTICE FOR TERMINATING CERTAIN TENANCIES. (a) A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other.
(b) If a notice of termination is given under Subsection (a) and if the rent-paying period is at least one month, the tenancy terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) one month after the day on which the notice is given.
(c) If a notice of termination is given under Subsection (a) and if the rent-paying period is less than a month, the tenancy terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) the day following the expiration of the period beginning on the day on which notice is given and extending for a number of days equal to the number of days in the rent-paying period.
(d) If a tenancy terminates on a day that does not correspond to the beginning or end of a rent-paying period, the tenant is liable for rent only up to the date of termination.
(e) Subsections (a), (b), (c), and (d) do not apply if:
(1) a landlord and a tenant have agreed in an instrument signed by both parties on a different period of notice to terminate the tenancy or that no notice is required; or
(2) there is a breach of contract recognized by law.

Acts 1983, 68th Leg., p. 3625, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 200, Sec. 3, eff. Aug. 26, 1985.
Sec. 91.003. TERMINATION OF LEASE BECAUSE OF PUBLIC INDECENCY CONVICTION. (a) A landlord may terminate a lease executed or renewed after June 15, 1981, if:
(1) the tenant or occupant of the leasehold uses the property for an activity for which the tenant or occupant or for which an agent or employee of the tenant or occupant is convicted under Chapter 43, Penal Code, as amended; and
(2) the convicted person has exhausted or abandoned all avenues of direct appeal from the conviction.
(b) The fee owner or an intermediate lessor terminates the lease by giving written notice of termination to the tenant or occupant within six months after the right to terminate arises under this section. The right to possess the property reverts to the landlord on the 10th day after the date the notice is given.
(c) This section applies regardless of a term of the lease to the contrary.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.004. LANDLORD’S BREACH OF LEASE; LIEN. (a) If the landlord of a tenant who is not in default under a lease fails to comply in any respect with the lease agreement, the landlord is liable to the tenant for damages resulting from the failure.
(b) To secure payment of the damages, the tenant has a lien on the landlord’s nonexempt property in the tenant’s possession and on the rent due to the landlord under the lease.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.005. SUBLETTING PROHIBITED. During the term of a lease, the tenant may not rent the leasehold to any other person without the prior consent of the landlord.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.006. LANDLORD’S DUTY TO MITIGATE DAMAGES. (a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.
(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

Added by Acts 1997, 75th Leg., ch. 1205, Sec. 8, eff. Sept. 1, 1997.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Now, this is the part that licensees need to remember for the Texas Real Estate Licensing Test

The recommended advice to agents is to NOT allow a situation where the Buyer moves in before closing, however.  It is a ready opportunity for Buyer’s Remorse, or any problems with the Buyer’s loan, the survey, even with the Seller’s title corrections could lead to a situation with having to terminate the temporary tenancy without completing the closing.

The opposite, where the Seller remains after closing has fewer dangers, since the Seller is already aware of the property condition, and the promulgated agreement takes care of other problems, like damage, or casualty, etc.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PROPERTY CODE

TITLE 8. LANDLORD AND TENANT

CHAPTER 91. PROVISIONS GENERALLY APPLICABLE TO LANDLORDS AND TENANTS

Sec. 91.001. NOTICE FOR TERMINATING CERTAIN TENANCIES. (a) A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other.
(b) If a notice of termination is given under Subsection (a) and if the rent-paying period is at least one month, the tenancy terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) one month after the day on which the notice is given.
(c) If a notice of termination is given under Subsection (a) and if the rent-paying period is less than a month, the tenancy terminates on whichever of the following days is the later:
(1) the day given in the notice for termination; or
(2) the day following the expiration of the period beginning on the day on which notice is given and extending for a number of days equal to the number of days in the rent-paying period.
(d) If a tenancy terminates on a day that does not correspond to the beginning or end of a rent-paying period, the tenant is liable for rent only up to the date of termination.
(e) Subsections (a), (b), (c), and (d) do not apply if:
(1) a landlord and a tenant have agreed in an instrument signed by both parties on a different period of notice to terminate the tenancy or that no notice is required; or
(2) there is a breach of contract recognized by law.

Acts 1983, 68th Leg., p. 3625, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 200, Sec. 3, eff. Aug. 26, 1985.
Sec. 91.003. TERMINATION OF LEASE BECAUSE OF PUBLIC INDECENCY CONVICTION. (a) A landlord may terminate a lease executed or renewed after June 15, 1981, if:
(1) the tenant or occupant of the leasehold uses the property for an activity for which the tenant or occupant or for which an agent or employee of the tenant or occupant is convicted under Chapter 43, Penal Code, as amended; and
(2) the convicted person has exhausted or abandoned all avenues of direct appeal from the conviction.
(b) The fee owner or an intermediate lessor terminates the lease by giving written notice of termination to the tenant or occupant within six months after the right to terminate arises under this section. The right to possess the property reverts to the landlord on the 10th day after the date the notice is given.
(c) This section applies regardless of a term of the lease to the contrary.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.004. LANDLORD’S BREACH OF LEASE; LIEN. (a) If the landlord of a tenant who is not in default under a lease fails to comply in any respect with the lease agreement, the landlord is liable to the tenant for damages resulting from the failure.
(b) To secure payment of the damages, the tenant has a lien on the landlord’s nonexempt property in the tenant’s possession and on the rent due to the landlord under the lease.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.005. SUBLETTING PROHIBITED. During the term of a lease, the tenant may not rent the leasehold to any other person without the prior consent of the landlord.

Acts 1983, 68th Leg., p. 3627, ch. 576, Sec. 1, eff. Jan. 1, 1984.
Sec. 91.006. LANDLORD’S DUTY TO MITIGATE DAMAGES. (a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.
(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

Added by Acts 1997, 75th Leg., ch. 1205, Sec. 8, eff. Sept. 1, 1997.

 

Real Estate Sales and Brokers License, Compliance and Opportunity

In working with MY sales agent license, approved by TREC (Texas Real Estate Commission) there’s a lot of the usual, as we call it these days, COMPLIANCE.  However, remember that this is also an OPPORTUNITY, since the agent has the opportunity to complete the transaction, get paid, and actually reduce or remove liability by ensuring compliance with the TREC rules.

Much of the information that you might need comes from TREC in their posts.   However, this website and blogpost, http://www.texasbrokersponsor.com/blogcompliance

Keeps track of may compliance issues.

 

 

Directions to the Office, D Bosworth, Attorney

Thanks for contacting us. The office is on Hwy. 281 North, just north of Bitters, near Oak Shadows/Winding Way.  The address is 14607 San Pedro, Ste. 100, San Antonio, TX 78232.

The trick is to find IHOP on the east side of Hwy. 281, and we are directly across the freeway from them. The other trick is to keep an eye out for TOSHIBA in red letters, both on the sign out front and on the building. Their part of the facility is thousands of square feet, beside our office and on the second floor of the building, and they are, therefore, deserving of sign rights.

Drive north of Bitters on Hwy. 281, and take the Oak Shadows/Winding Way exit. Take a U-turn, headed back to the south, and move to the right-hand lane. The building is Village Park One, but you can pull into any driveway of either of those two story, red brick buildings, starting with the entrance for One Medical Park . Drive to the building that indicates Toshiba, or Cross Financial, and enter at the double glass doors. Our space is to the immediate left, on the lobby.

Phone (210) 805-9334 or 9882

New Year, New Web Image, More Information

This post celebrates both a new year (2017) and a New Web Design.  I’m proud of my old favorites, the basic page I used since about 1998, and the newer layout from about 2005, but demands of mobile devices, and the availability of WordPress design has pushed us into the new millennium, second decade.

 

 

Best Bankruptcy Attorneys in San Antonio

You may ask, how do I find the best bankruptcy attorney for my foreclosure defense, debt relief, etc, near me?

My  suggestion is to look at the ones that are in Bankruptcy Court every day, doing motions to modify, defending lift stays, Chapter 13 confirmations, obtaining cash collateral for their clients.

Where do we find the best,  most active attorneys? Look in the docket calendar for the bankruptcy courts.

Upcoming bankruptcy dockets can be found at http://www2.txwb.uscourts.gov/calendar/calendar_index.htm

Let’s look at one of the larger dockets of the last year, January 28, 2016 in Judge Gargotta’s Court.

Which attorneys had the most cases?

J. Todd Malaise 387
Joris Robert vanhemelrijck 79

Heidi Mcleod 47

Rick Flume 24

Raymond J Vale Jr 7

Madgalena Gonzales 20

Ricardo Ojeda Jr 11

Lewis E. Buttles 10
John L. Sanders Sr 5
Ruben E. Vasquez 48
Morris Joseph Kirschberg 4

source: Attorney David Bosworth
www.mysanantoniolawyer.com

 

 

 

New Location for Foreclosure Auction and Bid Purchases in Bexar County

For a few months the Buyers, Bidders, Trustees, and Sheriffs have been meeting at a new location, on the First Tuesday of the month, of course, for the foreclosure sale. This is much better than the cramped stairway at the Courthouse, or the Federal building, with its undependable elevators. There is no protection from rain, or Summer heat, though, so it makes bidders work for their bargains. It is actually alongside the old Main Street between the Courthouse and the Elizondo Tower and Justice Center.

The “legal description” is: Bexar County in San Antonio, Texas, at the following location: the Courthouse, between the Bexar County Courthouse and the Paul Elizondo Tower near the intersection of E. Nueva Street & S. Main Avenue.

Some of the properties available are on this site:

https://www.auction.com/residential/tx/san-antonio_ct/

Tagged as: attorney, foreclosure, real estate, repossession, san antonio, taxes, texas

Residential (Non-Commercial) Real Estate Sales and Closings

Friends,

Another prospective client called the office recently, asking for legal counsel and assistance on a real estate closing transaction.

This office has had a set price for that type of transaction for some years. In sending this gentleman an email about hiring this office, I put in the general terms that I would use for anybody. With putting them in this post, I can inform the public, and copy those statements back for future prospects.

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Thank you for calling about handling a contract for the sale of real estate. As stated on the phone, our office usually handles a non-commercial transaction for $950 in fees, not including any filing fees, or other costs, taxes, certificates, surveys, title insurance, etc.

On these, I expect that to be a set price for any and all work that this office can do the counsel on the sale, from prospective contracts, counseling on inspectors, surveyors, etc,, reviewing contracts and title reports, preparing deed, note, deed of trust,closing statement, etc., if needed, and closing at this office is needed. There is probably some sensible limit if this goes on and on, with multiple buyers, etc, but we really haven’t ever hit that.

Please send me information as to the location, tax receipt, last deed if you have it. [Guadalupe/Wilson/Real/Atascosa/Frio County] doesn’t have quite the availability of documents that Bexar County has.

We can start with a down payment of $450, and with paypal charges of about $10, that can be paid at the bottom of the page on www.mysanantoniolawyer.com.

Please contact me with comments or questions.

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And that goes for you, too.