Texas Bar Journal • December 2024

Real Estate Law

Written by Roland Love

While the last year had fewer reported real estate cases, there were at least five worthy of note for the real estate practitioner. With space limitations in mind, they are briefly discussed here.

Moore v. Wells Fargo Bank, N.A.¹ addressed a question from the U.S. Court of Appeals for the 5th Circuit regarding the use of Texas Practice and Remedies Code § 16.038. This provision allows a notice of acceleration to be withdrawn or rescinded. It also provides for a reacceleration. In this case, the lender sought to do both in a single notice. This occurred multiple times, and the borrower eventually filed suit to assert that this could not be done under the wording of the statute and that limitations had run against foreclosure.

The Supreme Court agreed with the lender. The statute provides the means of rescinding acceleration. It does not require that the rescission notice be distinct or separate from other notices that a lender might send to borrowers with a loan in default. In the absence of any restriction, the court would not read one into the statute. The lender’s simultaneous reacceleration did not nullify the rescission.

Gaskins v. Navigator Oil and Minerals, Inc.² dealt with another foray into correction instruments. This correction deed was from before the current codification, but the finding might well affect a current interpretation. The original deed to Joe Mac and LaVerne Gaskins was executed in 1960, and a correction deed was executed by the grantor and Joe Mac 23 days later.

To make material corrections to the original deed, the statutes require that a correction deed, to be valid and enforceable, must be executed by the original parties to the recorded instrument of conveyance or, if applicable, by a party’s heirs, successors, or assigns. The statutes also contain a retroactive component: correction deeds that were recorded before the statutes’ effective date of September 1, 2011, such as the correction deed in this case, need not strictly comply with the statutory requirements; rather, only substantial compliance is required.

The assertion was made that the correction deed was void and ineffective because it was not signed by all original parties to the original deed. The court disagreed. The absence of LaVerne’s signature was of no consequence because Joe Mac signed the correction deed on behalf of the grantees, which included LaVerne. The statute only requires that each party to the original recorded instrument must execute, not sign, the correction deed. Joe Mac, in this case, signed the correction deed in a representative capacity and as the other original grantee.

Three more cases are listed here with a brief note regarding the subject matter:

Van Dyke v. Navigator Group³
Wording in a deed including a mineral interest was interpreted according to its meaning at the time (1924) of the deed.

Miles v. Texas Central Railroad & Infrastructure, Inc.⁴
Split decision upholding eminent domain authority of the Texas Central Railroad for an electric train between Dallas and Houston.

Wright v. Jones⁵
In a Lady Bird deed, in the absence of language vesting title in a cotenant or the other half of a community, when one owner died, the deceased’s interest passed to the remainder holder.

A number of courts addressed interpretations of deeds and transactions and uniformly found that opposing constructions of language did not inherently or necessarily make the language a question of fact.

ROLAND LOVE is the 2022 recipient of the State Bar of Texas Real Estate, Probate, and Trust Law Section Lifetime Achievement Award in Real Estate and the Texas Bar College Patrick A. Nester Award for Outstanding Achievement in CLE. In 2018, he was recognized by the Texas Land Title Association as the Outstanding Title Person of the Year. Love currently serves as chair of the State Bar of Texas Real Estate Forms Committee and as a member of the Texas Title Examination Standards Board. He is also a board member of the Texas Land Title Association and is the chair of its Regulatory Committee. Love is a past chair of the State Bar of Texas Real Estate, Probate, and Trust Law Section and a fellow of the American College of Real Estate Lawyers.