Ten years, two years and four years. Maybe.

Construction defects have to be timely asserted against the builder or general contractor. The Statute of Limitations determines the amount of time.

For a Deceptive Trade Practice action, the lawsuit must be filed within two years. The time doesn’t start running, however, until the defect is discovered.

For a breach of contract action, the lawsuit must be filed within 4 years. There is a “discovery” exception to the limitations period for this cause of action, too.

However, the outside limit is ten years, regardless of when the discovery of the defect was made. This is called the Statute of Repose, and the ten years begins to run upon substantial completion of the project.

As you might have guessed, the law as applied to specific facts is considerably more complex than described above. If you have discovered a construction defect, contact an attorney immediately to determine your rights.

“Standard Contract”.  A phrase that should  strike fear into your heart. 

The One to Four Family Residential Contract (Resale) is a standard contract, and a great example of why you should know what you are signing BEFORE you sign it.  It’s used by realtors all over the State of  Texas for the sale of houses.  The form was put out by the Texas Real Estate Commission (acronym TREC)

Four pages back, on the TREC form,  on paragraph 7D entitled Acceptance of Property Condition, the buyer must make a choice.  

  The first option,  Buyer accepts the Property in its present condition, is the one that most buyers choose .  Most realtors will encourage their buyers to choose that option. 

Stop right there.  That, my  friends,  is an “as is” clause.   Here is a short synopsis of what that means, with legal citations for those who want to go to the source:

A buyer who purchases property “as is” chooses “to rely entirely upon his own determination” of the property’s value and condition without any assurances from the seller. *124 Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995); see also TEX. BUS. & COM.CODE ANN. § 2.316(c)(1) (West 2009) (“as is” agreement excludes implied warranties). Thus, the buyer assumes the responsibility of assessing the property’s value and condition as well as the resulting risk that the property is worth less than the price paid. Prudential, 896 S.W.2d at 161. This evaluation on the part of the buyer constitutes a new and independent basis for the purchase, one that disavows any reliance on representations made by the seller. Id.; see Mid Continent Aircraft Corp. v. Curry Cnty. Spraying Serv. Inc., 572 S.W.2d 308, 313 (Tex.1978) (in “as is” contract, buyer “has taken the entire risk as to the quality of the [property] and the resulting loss.”). Thus, a valid “as is” clause negates the elements of causation and reliance for DTPA, fraud, or negligence claims relating to the value or condition of the property. Prudential, 896 S.W.2d at 161; Welwood v. Cypress Creek Estates, Inc., 205 S.W.3d 722, 726 (Tex.App.-Dallas 2006, no pet.) (“In general, a valid ‘as is’ agreement negates the element of causation necessary to recover on claims regarding the physical condition of the property.”); Larsen, 41 S.W.3d at 253 (holding that “as is” clause in earnest money contract conclusively negated causation and reliance elements of plaintiff’s fraud, negligence and DTPA claims); Boehl, 2011 WL 238348, at *2 (affirming summary judgment on ground that “as is” clause in TREC residential resale contract negated causation as to buyer’s DTPA, fraud and negligence claims).

Now, take a moment and skip back to section 7A of the TREC  contract.  That gives the buyer (you) the right to make an inspection of the property.  If you chose the first option, then you still have the right to make the inspection.  It’s just that you are stuck with what you find, unless the seller agrees to fix it.   

If, like most people, your purchase of a house is a significant event in your life, you may want to take a moment and read that standard contract.    You may even want to consult with a Texas real estate attorney before you sign a real estate contract.  Little paragraph like 7D have been known to have a very big effect. 

What is Eminent Domain? Texas Eminent Domain is the right of the government to take or acquire private property for a public use. Some non-governmental or quasi-governmental entities that provide public services, such as electricity, natural gas and water, also have the power of eminent domain.

The Process. Condemnation is the legal process through which a governmental unit, such as TX-DOT, takes or acquires private property under its power of eminent domain. The process begins by TX-DOT sending out letters to owners of property that it wants to buy, such as may happen for the I-35E corridor in Denton County or the I-635 expansion. TX-DOT offers a buy-out price. If negotiations with the property owner are unsuccessful, the government or entity exercising the power of eminent domain will file a civil lawsuit to acquire the property through a condemnation proceeding and trial, if necessary.

In Denton County, condemnation actions are filed in the Denton County Probate Court. The Judge appoints three people to act as Special Commissioners, and the case is first tried before them. The Commissioners make a finding. If the parties agree, the case ends there. If they do not agree, then the commissioner’s finding is appealed and goes to a new trial before the judge or jury. case goes before a judge (or jury)

The Government’s Burden. The government must prove that the taking is for a public use and that it is be necessary. Both the federal and state constitutions require that the government or entity exercising the power of eminent domain offer the property owner just compensation for the taking. Just compensation is determined by the fair market value of the property being acquired and the damages, if any, to the remainder property. The valuation must include the “highest and best use” of the property, even if it is not the current use.

It’s no surprise to anyone traveling through North Texas – I-35E is a traffic-clogged nightmare. Officials have been talking about an I-35E expansion in Denton County for decades. Now it looks like it will be a reality, moving the current 4 regular lanes and the frontage lanes to a total of 18 lanes.
Of course, to do that they will have to buy up a lot of private property and tear down a slew of private buildings. The government has a right to do that through their eminent domain powers. The process is called Condemnation, and it looks like there will be a lot of Denton County residents affected.
The government starts a condemnation proceeding by making an offer to a landowner. The landowner can accept it, negotiate it, or refuse it. If they refuse it, then for property located in Denton County, the State will file its condemnation action in the Denton County probate court.
If they haven’t already, at this point the landowner should seriously consider hiring a law firm experienced in condemnation actions. Hammerle Finley has attorneys who are experienced in Denton County real estate land takings, fair compensation, eminent domain litigation and government valuation of property.
The Denton County Judge will appoint three Denton County residents to act a special commissioners to hear the condemnation dispute. Our attorneys will work with an experienced appraiser to prepare and present the landowner’s case. If the commissioner’s award is not acceptable, and another resolution cannot be negotiated, then the case goes back to Court to be litigated.
Texas condemnation law has evolved for over 100 years. The I-35E Eminent Domain Actions will require intense work by attorneys who are familiar with the area. Hammerle Finley Law Firm has been in Denton County for more than 25 years. We can help.

Beauty is in the eye of the beholder. A gas rig, in all its glory, is beautiful to only the gas company and the royalty holder. That leaves out the land owner, the neighbors and the community, now doesn’t it?

Texas oil and gas law could fill a book. For 150 years battles have raged over the ownership of minerals, the rights of owners of the surface estate, and the allocation of monies.

In Texas, you see, land has 2 parts. The first part is the “surface estate,” or the soil and what’s on top. The second part if the “mineral estate,” or what’s underneath.
The mineral estate is considered an “interest” in land. It can be divided and sold from the surface estate.

But the mineral estate would be worthless if it couldn’t be accessed. The only way to access it is to intrude upon the surface estate. So, the mineral estate carries with it an important right: that of entering and using the surface estate. The mineral estate is called “dominant” because it can ride roughshod over the rights of the surface estate.

The surface estate is called “servient.”

That gives rise to all sorts of complications. No one wants an intruder to enter upon his property without notice and put really ugly and noisy equipment next to his house. So the Courts developed some guidelines. The mineral estate can use as much of the surface estate as is reasonably necessary to produce minerals, but has to take into consideration due regard for the rights of the owners AND those actions have to be without negligence to the rights of the owners. Further, if the mineral estate has a reasonable alternative, then the rights of the surface owner have to be accommodated.

These words are terms of art and are meaningless unless applied to specific facts. What may be necessary on one tract of land (such as running a road down the center of the tract) may be not be necessary on another tract. That leaves plenty of room for negotiation and lawsuits.

If the surface owner objects to the use by the mineral owner, then he has the big burden to prove that he should be accommodated. He will have to show the surface use, that it existed before the mineral owner’s development, that the existing surface use is the only way to accomplish a specific goal, and that the mineral owner has a reasonable alternative that will allow full production of the minerals.

That doesn’t mean the surface owner is completely without ammunition. There’s several creative claims, such as surface damage, damage to livestock, nuisance and negligence. If negotiations don’t work, the surface owner may be able to get a court order stopping the mineral owner from taking certain actions.

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