- The importance to buyers of seeking a real estate lawyer for their real estate purchase
- The importance of a legal description in order to satisfy the statute of frauds
- The role of a surveyor in a transaction
A real estate lawyer in Houston or Texas can explain the importance of a proper legal description in real estate contracts. Without a sufficient legal description, any contract conveying property may be void. A failure of a proper legal description occurs most often when the parties draw their own sales documents or when they go to a notary to prepare documents.
In Spanish-speaking countries, a “notario” is a proper person to draw real estate documents. Texas has no corollary to notarios, and buyers should not entrust their purchase to a Texas notary. A failure of a proper legal description is only one of may things that can go wrong when a notary prepares a deed or other real estate sales document, and this is why buyers should insist on using a Texas Real Estate Attorney. You can contact Hector Chavana Jr. at 713-979-2941 to consult regarding your real estate issues.
The statute of frauds requires certain contracts to be in writing in order to avoid fraudulent claims by plaintiffs. If a conveyance of an interest in real property does not sufficiently describe the land to be conveyed, it is void and under the statute of frauds. See Republic Nat’l Bank of Dallas v. Stetson, 390 S.W.2d 257, 261 (Tex.1965). Such a contract, deed, or conveyance will not support an action for specific performance or a suit for damages for a breach of contract. Wilson, 188 S.W.2d at 152; Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).
This is why it is important that a real estate lawyer ensure that the legal description is correct. Typically, a buyer should hire a surveyor in order to ensure that the legal description describes the property that the buyer intends to buy. A lawyer may use the property description given to him by the buyer or seller, but without the aid of a survey, he/she might be unable to tell the buyer where the property begins or ends or even if it is the property the buyer intends to buy! A buyer may wish to purchase title insurance and homeowner’s insurance along with flood insurance.
The Dallas Court of appeals has held that an address, alone, may be sufficient to satisfy the statute of frauds. Here is a snippet from Apex Fin. Corp. v. Garza, 155 S.W.3d 230, 237 (Tex. App. -Dallas, 2004, pet. denied):
Butler v. Benefield, 589 S.W.2d 778, 780 (Tex.Civ.App.-Dallas 1979, writ ref’d n.r.e.); see Henderson v. Priest, 591 S.W.2d 635, 636 (Tex.Civ.App.-Dallas 1979, writ ref’d n.r.e.) (street address sufficient when considered with extrinsic evidence showing only one tract of land can meet description). The record contains no evidence of confusion as to the identity of the property subject to the quitclaim deed. Apex presented no evidence that there is more than one tract of land fitting the description in the deed, that LaCrosse owned other property nearby, or any other evidence indicating that the property cannot be located with reasonable certainty. See Butler, 589 S.W.2d at 780 (“When, however, from the description given, it is reasonably possible to locate more than one tract of land fitting that description, the statute of frauds is not satisfied.”); Friedlander v. Christianson, 320 S.W.2d 404, (Tex.Civ.App.-Houston 1959, no writ) (description insufficient where street address listed and vendor owned other property nearby). We conclude Apex did not show that the property description does not furnish the means or data by which the land can be identified with reasonable certainty.
One Houston Court of Appeals appears to be in accord, expressly citing with approval Apex Fin. Corp. The Houston Court in Nguyen v. Yovan, 317 S.W.3d 261, 267–69 (Tex. App. -Houston [1st Dist.] 2009, pet. denied) said:
Here, the contract contains a complete street address, 15817 Hwy. 6, Santa Fe, Tx. See Apex Financial Corp. v. Garza, 155 S.W.3d 230, 237 (Tex.App.-Dallas 2004, pet. denied) (“We have held that a street address or a commonly-known name for property may be sufficient property description if there is no confusion.”)
Still, in Nguyen, the description had language in addition to the address:
15817 Hwy. 6, Santa Fe, Tx. The property description is as follows:
ABST 613 PAGE 6 LOTS 5 thru 7 HIGHWAY 6UNRECORDED SUBSANTA FE, TEXAS 0.384 ACRES
In Nguyen, an expert surveyor stated that the additional language and CAD parcel number provided additional information whereby he could identify the property. Even though the surveyor did not find the additional information to be “definitive,” the Court said:
a contract for deed need only have the “means or data by which the land to be conveyed may be identified with reasonable certainty.” See Morrow v. Shotwell, 477 S.W.2d 538 539 (Tex.1972). The law does not require a metes and bounds description or a plat in a recorded subdivision in order for land to be conveyed by a contract for deed. See Keller, 928 S.W.2d at 481.
Thanks to Associate Attorney Sergio Perez for these cases: Courts have held that a description in a writing which states “my property,” “my land,” or “owned by me” is a sufficient description when it is shown by extrinsic evidence that the party to be charged owns a tract and only one tract of land which satisfies the description. Kmiec v. Reagan, 556 S.W.2d 567 (Tex. 1977); Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983).
The certainty of the contract may be aided by parol only with certain limitations. The essential
elements may never be supplied by parol. The details which merely explain or clarify the essential
terms appearing in the instrument may ordinarily be shown by parol. But the parol must not
constitute the framework or skeleton of the agreement. That must be contained in the writing.
Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the
location or description of the land, but only for the purpose of identifying it with reasonable
certainty from the data in the memorandum. O’Herin [**4] v. Neal , Tex. Civ. App., 56 S.W.2d
1105, writ refused.
Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983)
This Court has held that a description in a writing which states “my property,” “my land,” or
“owned by me” is a sufficient description when it is shown by extrinsic evidence that the
party to be charged owns a tract and only one tract of land which satisfies the description. In
Kmiec v. Reagan, 556 S.W.2d 567 (Tex. 1977), we held that when the grantor is stated to be the
owner of the property to be conveyed and it is proved that the grantor [**5] owns only a single tract
answering the description, the land is identified with reasonable certainty. When the description of
property in a deed is uncertain, allegations of ownership are an important consideration.
Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983)
Where the identity of the property is doubtful, ownership becomes an important element. No
relief in this respect is afforded by respondent’s signature to the instruments. It is not a
necessary inference that Mrs. Fisher owned the property simply because she contracted to
sell it. [*638] Starkey v. Texas Farm Mortgage Co., Tex. Civ. App., 45 S.W.2d 999, writ refused.
The description of the property is otherwise wholly deficient. No city, county or state is
mentioned in connection with its location.
Pick v. Bartel, 659 S.W.2d 636, 637-38 (Tex. 1983)
The quoted description of Second Tract does not refer to any other existing writing. Our problem,
then, is to analyze the description to see if it furnishes, within itself, the means or data by which the
tract may be identified with reasonable certainty.
Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972)
The record leaves little doubt that the parties knew and understood what property was intended to
be conveyed as Second Tract. Moreover, a surveyor, by a search of abstract records and on
directions given by an attorney, located the property on the ground and made a plat which was
introduced in evidence and shows its location and boundaries. However, the knowledge and intent
of the parties will not give validity to the contract, Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d
468, 470 (1955); and neither will a plat made from extrinsic evidence. Matney v. Odom, 147 Tex.
26, 210 S.W.2d 980, 984 (1948). The correct rule relating to [*541] admissibility of parol evidence to
aid descriptions [**7] in contracts for the conveyance of land is thus stated in Wilson v. Fisher, 144
Tex. 53, 188 S.W.2d 150, 152 (1945):
Morrow v. Shotwell, 477 S.W.2d 538, 540-41 (Tex. 1972)
There is in the record strong evidence that the parties intended to describe a particular and
identified tract of 12.375 acres in their contract, and that they were mutually mistaken in the
belief that the description used was legally sufficient for that purpose. If that be a fact,
Morrow would have been entitled to reformation of the contract had he sought it. Miles v.
Martin, 159 Tex. 336, 321 S.W.2d 62 (1959); Kelley v. Ward, 94 Tex. 289, 60 S.W. 311 (1901);
Gilbert v. Smith, 49 S.W.2d 702, 86 A.L.R. 445 (Tex.Com.App. 1932). It thus appears that
Morrow may have tried his case on a wrong theory.
Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex. 1972)
Defendant’s first two points of error contest the legal sufficiency of the description “415 Holley,
Sherman, Texas.” In Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945) the court stated that a
property description must furnish the means or data by which the land in question can be identified
with “reasonable certainty” in order to satisfy the statute of frauds. Id. at 56-57, 188 S.W.2d at 152.
[**3] The purpose of a description is to “afford a means of identification,” not necessarily to identify.
Krueger v. W. K. Ewing Co., 139 S.W.2d 836, 839 (Tex. Civ. App. — El Paso 1940, no writ). Thus, a
street address or a commonly-known name for property may be sufficient if there is no
confusion. See A.A.A. Realty Co. v. Neece, 292 S.W.2d 811, 815 (Tex. Civ. App. — Fort Worth
1956) (“Catalina Motel, 1409 East Scott Street, Wichita Falls, Texas,” sufficient when vendor
owned only one Catalina Motel in Wichita Falls), aff’d, 156 Tex. 614, 299 S.W.2d 270 (1957);
Krueger v. W. K. Ewing Co., 139 S.W.2d at 839 (“San Gabriel Apartments” sufficient when
building so known for twelve years and date line of offer to purchase listed San Antonio,
Texas); Sorsby v. Thom, 122 S.W.2d 275, 277 (Tex. Civ. App. — Galveston 1938, writ dism’d) (“Rock
Island Plantation” sufficient when property so known for twenty-five years and all
transactions occurred in Hempstead, Texas). Each of the descriptions set out above furnished
sufficient means of identifying the property, when considered with the aid of tendered extrinsic proof.
In Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d [**4] 222 (1949) the supreme court stated that even a
description using the words “my land,” “my property,” or “owned by me” to indicate a particular tract
within a more general area is sufficient if supported by extrinsic evidence that that party owned only
one tract fitting the description in the contract. Id. at 210, 223 S.W.2d at 223.
Butler v. Benefield, 589 S.W.2d 778, 780 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.)
However, be mindful that the doctrine of part performance acts as an exception to the statute of frauds, and that a claimant to a property may prevail with no writing at all.
Generally, a contract for the sale of real estate is unenforceable unless it is in writing and signed by the person charged with the promise. Tex. Bus. & Com. Code § 26.01. Partial performance, however, will operate to exempt an oral contract for the sale or transfer of real property from the statute of frauds. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex.1992).
Under the doctrine of partial performance, an oral contract for the purchase of real property is sufficiently corroborated and enforceable if the purchaser:
(1) pays consideration;
(2) takes possession of the property; and
(3) makes permanent and valuable improvements on the property with the consent of the seller, or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced.
Espinoza v. Lopez, 468 S.W.3d 692, 696 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Even the executory contract statute for the state, the contract for deed statute, under Subchapter D of Chapter 5 of the Texas Property Code, the doctrine of Part Performance applies to enforce the contract. Burrus v. Reyes, 516 S.W.3d 170, 181 (Tex. App.—El Paso 2017, pet. denied).
Some courts imply that consideration need not consist of money, which is the traditional rule in contracts.
The parol contract here has no basis for its enforcement, other than the plaintiff’s performance by his assuming with Davis the relation and rendering him the service of a son. That was the consideration for Davis’ agreement to make him the owner of his estate. The case, therefore, is simply one where the consideration for a parol agreement to transfer the title to land has been paid, with no possession of the land surrendered and no valuable and permanent improvements made by the purchaser on the faith of the agreement. In no other character of case resting only upon the payment of the consideration could such a contract be enforced in this State. If the consideration for Davis’ agreement had been an amount of money, however large, and had been fully paid, without possession of the land and valuable and permandent improvements the contract would be held incapable of enforcement. If the payment of the consideration is to be held insufficient in one case, it should be so held in all cases. The **1118 test is not the character of the consideration nor the value of the bargain. Why should the nature of the consideration or its exceptional value alone determine the question, instead of the rule itself which, in addition to the payment of the consideration, whatever its character and value, requires possession of the land and valuable and permanent improvements? And why should there be allowed the enforcement of a parol contract for the sale of land, the consideration being of the nature paid in this case, and deny its enforcement where the consideration has been fully paid in money? No satisfactory answer can be given to these questions.
In general, it appears that, under the right circumstances, an address, may be sufficient to satisfy the statute of frauds. However, you don’t want to be the one to test the court, because it will cost a significant sum. This is because a mere address might create ambiguity that will fail to satisfy the statute of frauds. For a quick, informal look at a parcel, you can use Harris County’s Parcel Locator, though you should not rely on what you find on that site. Call 713-979-2941 to set up an appointment with Hector Chavana Jr. regarding your real estate situation.