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08-21-2007, 02:49 PM
| | Senior Member | | Join Date: Sep 2006 Location: Missouri Ozarks
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Originally Posted by aconnally  Surely recording an affidavit stating that the contract is canceled should show up in the title search as well.
Am I wrong with that? How would a judicial ruling change that? They would record an extra document to show that the contract is canceled, so I am not sure why I couldn't do that myself. | The title would not be clear. The affidavit would be your word the contract is canceled. It doesn't prevent the other party from claiming the contract is valid. The other party needs to quit claim any interest in the property or you need a judicial foreclosure.
Hopefully others will clarify. |
08-23-2007, 01:32 PM
| | Junior Member | | Join Date: Aug 2007
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| | | Wouldn't another deed, like the quit claim dirty up the title as well? Right now, the land is in my name, and although we have a contract pending, there is nothing that states he has any interest in this property until the deed is signed over.
I understand about my word vs his on the affidavit. I guess I need to go see a judge. Would small claims be fine for this, or do I need to go to a county court? |
08-23-2007, 02:00 PM
| | Senior Member | | Join Date: May 2000 Location: Catatonic State
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Originally Posted by aconnally Wouldn't another deed, like the quit claim dirty up the title as well? Right now, the land is in my name, and although we have a contract pending, there is nothing that states he has any interest in this property until the deed is signed over.
I understand about my word vs his on the affidavit. I guess I need to go see a judge. Would small claims be fine for this, or do I need to go to a county court? | **A: yours is most likely not a small claims issue. Keep in mind that in a land contract, the Vendee (Buyer) is said to have equitable title so just because their name is not on the deed, they still have interest in the property. They just do not have legal title. |
08-23-2007, 02:04 PM
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| | | So, even though they haven't paid or fulfilled the terms of the contract, they have interest in the property? That doesn't seem right.
If small claims won't work, what court do I need to seek out? |
08-23-2007, 02:08 PM
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Originally Posted by aconnally So, even though they haven't paid or fulfilled the terms of the contract, they have interest in the property? That doesn't seem right.
**A: read your contract.
**********
If small claims won't work, what court do I need to seek out? |
Call the courts and ask them. |
08-23-2007, 02:12 PM
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| | | Q: So, even though they haven't paid or fulfilled the terms of the contract, they have interest in the property? That doesn't seem right.
A: Who drew up the contract?
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08-23-2007, 02:14 PM
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Originally Posted by seniorjudge Q: So, even though they haven't paid or fulfilled the terms of the contract, they have interest in the property? That doesn't seem right.
A: Who drew up the contract? | **A: who cares. |
08-23-2007, 02:15 PM
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Originally Posted by HomeGuru **A: who cares. | If our poster drew up the contract (or had it drawn up), then I don't see how he could complain about its fairness. 
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08-23-2007, 02:17 PM
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Originally Posted by aconnally So, even though they haven't paid or fulfilled the terms of the contract, they have interest in the property? That doesn't seem right.
If small claims won't work, what court do I need to seek out? | Think about what you just wrote. When you purchase a home, and have a mortgage on that home, do you have an interest in that home?
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08-23-2007, 02:21 PM
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| | Who drew up the contract?
Well, a real estate lawyer for my father who handles his real estate transactions drew up the contract. It specifically addresses what happens if payments are not made, insurance is not kept, etc. Basically, it allows the seller to send a demand letter, then gives the buyer 15 days to rectify the situation. At that point, buyer is in default.
Here are the sections related to default: Quote:
23 Default by Buyer/Events. Defaults by Buyer are failing to timely pay the Monthly Payment Amount or perform Buyer’s other obligations in this contract within fifteen days after delivery of written notice. However, if the Property is used or to be used as Buyer’s residence or as the residence of a person related to the Buyer within the second degree of consanguinity or affinity, Buyer is entitled to cure Buyer’s default within the period determined by section 5.064 of the Texas Property Code. To avoid enforcement of Seller’s remedy, Buyer must comply with the terms of this contract up to the date of compliance specified in the written notice.
24. Default by Buyer/Seller’s Remedies. On Buyer’s default, Seller may invoke any remedies permitted by law, subject to provisions of the Texas Property Code, including declaring the unpaid principal balance and accrued interest immediately due and enforcing their collection, or canceling this contract, declaring Buyer’s interest under this contract forfeited, and retaining all money paid by Buyer under this contract as liquidated damages due to the inconvenience and difficulty of determining Seller’s actual damages.
27. After Cancellation. Buyer will vacate the Property following cancellation of this contract, and, failing to do so, Buyer will be a tenant at will, subject to an action in forcible detainer.
28. Recitals Presumed True. If Seller cancels this contract, Seller may execute an affidavit stating facts evidencing default and forfeiture and the recitals in the affidavit will be presumed true.
| Now, according to the contract, it seems that it is simple enough on what to do.
Am I wrong in assuming that I can just follow the contract and file an affidavit without any penalty on the title?  |
08-23-2007, 02:23 PM
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| | | Q: Now, according to the contract, it seems that it is simple enough on what to do. Am I wrong in assuming that I can just follow the contract and file an affidavit without any penalty on the title?
A: I seriously doubt that a court would uphold those provisions. However, it would be up to the title company when you go to sell it after you get it back.
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08-23-2007, 02:32 PM
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Originally Posted by seniorjudge I seriously doubt that a court would uphold those provisions. However, it would be up to the title company when you go to sell it after you get it back. | Why would a court not uphold them? The buyer and seller both agreed to them, and they don't contradict Texas law, so it seems like the court would have to, really.
It seems strange that one party can hold up their end of the contract and the other party can default on several issues, including payment, and then come out with being able to own interest in the property. That just seems weird.
I mean, if you only pay 1/10 of the price of a car, do you own 1/10 of the car? No, you can only own the whole car or nothing.
That is why I am confused as to why the buyer would have any interest. The contract doesn't give them any interest, and states that if they default, they loose any interest they had, if any.
You guys seem to know more about it than me, so I am going to take your word for it and go see a lawyer, which is extremely expensive and difficult for me to do at this point, as I am not even in the US right now, but I guess it has to be done. Thanks for your advice. |
08-23-2007, 02:35 PM
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| | | You asked about interest, not ownership.
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08-23-2007, 02:37 PM
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| | | ok, I see now. Now I feel stupid. Yes, interest and ownership are different things. Sorry about that.
Now the issue remains that if the contract states that the buyer looses their interest upon default, do I still need a quit claim? |
08-23-2007, 02:43 PM
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Originally Posted by aconnally ok, I see now. Now I feel stupid. Yes, interest and ownership are different things. Sorry about that.
Now the issue remains that if the contract states that the buyer looses their interest upon default, do I still need a quit claim? | Ask for a quit claim deed from the bad people to you, stating that they give up all rights to you under the contract for deed.
Obviously, you needed a lawyer BEFORE you did this...so be sure and get one now to help you clean up this mess.
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