What is FIRPTA and how does it affect the Buyer in a Real Estate Transaction

FIRPTA is an acronym for the Foreign Investments in Real Property Tax Act.  FIRPTA is a U.S. tax statute that imposes tax on foreign persons, defined as nonresident non-citizen individuals and corporations, disposing of real property in the United States.  In order to ensure collection, the statute places the burden of verifying the applicability of FIRPTA on the buyers, as well as withholding and remitting the required funds, and creates a lien against the real property to secure the payment of any amount due. Real property transactions with a value of $300,000.00 or less which will be the principal residence of the purchaser are exempt from FIRPTA withholding.

Because the statute secures the payment of any requited withholding as a lien against the property being purchased, buyers should verify whether the transaction is exempt from FIRPTA and, if not, whether the seller is a foreign person under the statute.  The escrow agent or title company handling the transaction may request verification from the seller as part of their processing of the transaction, or as a courtesy to the parties, but the ultimate responsibility is on the purchaser.  Typically the title company will assist in the event withholding is required by deducting the funds from the seller’s proceeds and remitting them to the IRS.

Do I Really Need a New Survey?


Do I Really Need a New Survey?

When someone buys a home, the question always comes up as to whether they would like to have a new survey of the property or use an existing one provided by the Seller.  To make an informed decision, the potential buyer should understand that a survey is drawing that shows the boundaries of a property, as well as any improvements, easements, building set back lines and other features relevant to the owner’s use of the property.  With that understanding, and assuming that the seller does in fact have an existing survey, there are several questions that the potential buyer should ask.

  1. Does the seller’s existing survey accurately depict the property? The potential buyer has been to the property and should be able to look at an existing survey and determine if the drawing looks the same as the property looked in person.  Google maps can also be a good way to compare an aerial view of the property to the survey.  If there is a variance what is shown on the existing survey and what is actually on the property, a new survey should be ordered.
  2. How old is the existing survey? As long as there have been no changes to the improvements, easements or building set back lines, title companies will typically accept surveys that are less than 10 years old (and even older if you ask nicely).  However, there have been huge advances in the technology used by surveyors, such as GPS, which allow for much more accurate measurements.  It is not unusual for us to see a platted 50’ X 100’ lot actually be slightly smaller or larger using modern technology.
  3. Is the surveyor who performed the existing survey still in business? Surveyors are licensed by the State and carry Errors and Omissions Insurance to cover them in the event of a mistake.  Most surveys contain language that they are only certified to the purchaser and title company shown on the face of the survey, but the knowledge that the surveyor is still in business or at least available in the event of an issue can be important.


Assuming the existing survey is accurate and acceptable to the title company, Realtors that we deal with are split on whether they advise their clients to have a new survey performed.  The primary reason to use an existing survey is to save money.  The price range for residential surveys is currently between $350.00 and $550.00.  While this may appear to be a substantial amount, when one considers that the purchase of a home is probably the largest investment they will make during their lifetime, the cost is actually minimal.  Potential buyers should also keep in mind that a new survey will be certified by the RPLS for that buyer, giving the buyer additional protection in the event of a boundary dispute.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.


What is an Easement?


An easement is a non-possessory right to use property owned by another person for a specific purpose.  An easement does not allow the holder of the easement to exclude the owner or others from the property that is subject to the easement, but does give the right to access and use the property that is subject to the easement whenever necessary to accomplish the purpose of the easement.  Typically, easements will be limited in size to reflect the actual property that is necessary to accomplish the specific purpose.  Buildings should never be constructed within an easement, as the holder of the easement can require that structures that interfere with the easement be removed at the property owner’s expense.  Easements are said to “run with the land,” meaning that the sale of the property does not affect the validity of the easement.  Easements may also be transferred by the easement holder.

Easements can be for a variety of purposes, including pipelines, access, driveways and utilities.  Most residential properties are subject to easements benefitting the City and/or utility companies that provide service to the property.  These Easements are typically limited to a strip of land somewhere between three feet (3’) and ten feet (10’) in width along the rear or side of the residential lot and may be underground, surface or aerial in nature.  The holder of these utility easements may access the easement property to install, repair and maintain utility and sewer lines located within the easement property, which can mean damage to landscaping, patios or other improvements located within the easement property.

Based on the recent trend in zero lot line building, the City of Houston has started requiring builders who are building within three feet (3’) of a lot line to obtain an easement from the neighboring property for the purpose of maintenance to the new building.  The same principals apply to these maintenance easements.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.

The Importance of Having a Will

My standard answer when someone asks if they need a will is – “If you have kids, you need a will.”  What makes having kids a determining factor?

First, if you have minor children you want to have some say in who will take care of them in the unlikely event both you and your spouse pass away. Beyond that, you probably also want to designate who will be responsible for controlling the funds that will be used for their health, education and welfare until they are old enough to manage their own finances.  Without a valid will, both of these decisions will be left to the probate court.

Second, if you die without a will, the law designates how your property is distributed – and the probate court may need to be involved in the process. If you have no children, the law distributes your property to your spouse if you are married, or to your parents and their heirs if you are unmarried and childless.  If you are married and have children that are not also your current spouse’s children, all children and your current spouse inherit your property.

As an attorney who handles the closing of real estate transactions, I see files where someone died without a will on a weekly basis. I have seen scenarios in which an estranged child from a prior marriage has an interest in a property that was purchased with a new spouse, or one child refuses to cooperate when all others chip in for maintenance and taxes on property or want to sell property.  I have even seen several children agree to ignore the existence of another child when they provide an affidavit as to their siblings.

When a valid will is probated the cost is generally reasonable – in the neighborhood of a few thousand dollars if you hire an attorney to handle the probate for you.  When there is no will and the probate courts are involved in the guardianship of children or the distribution of property, the costs can be much higher because the court, not having the benefit of your intentions, will hire attorneys, appraisers, psychologists and others to determine what is in the best interest of your children and how best to dispose of your property.  These people are all paid out of your estate, and not necessarily interested in making sure that your property brings in top dollar.  The cost to your estate of not having a will often far exceed the cost of having one prepared.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call. Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713)529-8800.



Mobile Closing Options

The signing of documents for a real estate closing typically occurs at the office of the title company for several reasons.  First, it lessens the possibility of fraud or a later claim of fraud or incapacity in the execution of the documents because an employee of the title company actually witnesses the signing and notarizes any documents requiring notarization.  Second, many lenders, and state law in some circumstances, require that the documents be executed at the title company office.  Third, it is often more convenient for the parties (and expedites the funding of the transaction) because it eliminates the need to print or receive the documents, locate a notary to notarize any required documents and return the signed documents to the title company.  Title Companies do understand, however, that there will be situations where individuals cannot make it to the title company office and other arrangements need to be made.

One option that is available is an outside notary.  Because not all notaries are familiar with real estate documents, title companies typically require that any outside notary be approved by the title company.  The title company will vet the notary or notary service for their experience in handling real estate documents, as well as their errors.


If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.

Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.



Using Power of Attorney in Real Estate Transactions

Title companies often receive requests to allow one or more parties to a real estate transaction to sign documents through the use of a Power of Attorney.  A Power of Attorney is a written document in which an individual, called the Principal, gives authority to another individual, called the Agent, to act on the Principal’s behalf.  In Texas, Power of Attorney used in a real estate transaction must be recorded in the Real Property Records of the county where the property is located.  The Power of Attorney may be in the form of a Statutory Durable Power of Attorney or a specific Power of Attorney.

The Statutory Durable Power of Attorney is set forth in the Texas Estates Code and a form of this document is typically easily located online.  The Statutory Durable Power of Attorney contains a laundry list of powers that may be given and requires the person completing the form to make a number of selections within the document itself.  Additionally, the Statutory Durable Power of Attorney does not terminate automatically when your transaction ends.  Because a Statutory Durable Power of Attorney can grant the Agent a multitude of powers and be valid until revoked, I typically recommend that persons considering using a Statutory Durable Power of Attorney consult and attorney prior to using the document.

The specific Power of Attorney is typically drafted by an attorney, for a fee, and is specific to the transaction being handled by the title company. Because it is drafted specifically for the transaction at hand, there are no other powers that can inadvertently be granted, and a termination date can be included in the document.

Because of the potential for fraud title companies are often wary of Powers of Attorney.  They will allow them, subject to approval of any lender involved; if the document meets the title company’s underwriting guidelines.  Regardless of which type of Power of Attorney is used, the title company will want to ratify the Power of Attorney by speaking to the Principal on the day the documents are being signed to verify that the Power of Attorney was actually signed by them and that Power of Attorney has not been revoked.  If the Principal is incapacitated at the time of the closing of the transaction, the title company may require verification from the Principal’s physician that the Principal was competent at the time the Power of Attorney was signed and verification from a caregiver that the Principal is still alive.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.

Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.




Affidavits of Heirship

An Affidavit of Heirship is a sworn document that sets out the family history of a deceased person.  The primary purpose of an Affidavit of Heirship is to let others, particularly probate courts, title companies and others interested in the disposition of a person’s estate, know the person or persons who will inherit property under the Texas laws of intestate succession and should include information on whether the decedent had a will.  An Affidavit of Heirship may be used in conjunction with probate proceedings, or may be used as a stand-alone document in the event there is not a reason that the decedent’s estate must go through the probate process.

The Texas Estates Code sets forth a form Affidavit of Heirship that is acceptable for use in conjunction with probate proceedings.  This same form when used as a stand-alone document, however, is not acceptable for title company underwriting purposes because it omits several things that are relevant to the transfer of title and which are typically covered by other probate proceedings.  In addition to the family history, title companies require that any will of the deceased be attached, an affirmative statement that all debts of the decedent, including federal estate taxes and any amounts due under the Medicaid Estate Recovery Program, have been paid.  In order to combat fraud, title companies also require that the Affidavit contain a perjury clause, indicating that the affiant acknowledges that lying on the document will subject them to criminal prosecution.  As an extra defense against fraud, title companies also require that the information in the Affidavit of Heirship be affirmed by two disinterested witnesses that are familiar with the family history of the decedent.

Once an Affidavit of Heirship is completed, the title company examiner will review to determine who will be required to sign the documents transferring title.  Typically this will include not only the heirs at law, but any devisees under the will who are not also heirs at law.  Although the title company will determine who needs to sign, they will not typically determine the interest owned by each heir or devisee as the title company does not provide legal advice to the parties.   The title company will ask that all those required to sign to also sign a document designating how much of the proceeds will be disbursed to each signer, so that an agreement is in place before the title transfer occurs.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.



Closing Properties in an Estate

Closing Properties in an Estate

It is not unusual for a title company to handle a transaction in which the last person in the recorded chain of title for a piece of property is deceased.  When this happens, title companies must rely on the Texas Estates Code to determine who has authority to sell the deceased person’s property.  A person who dies with a will is said to have died testate.  When a person dies testate, typically the terms of the will dictate who has authority to act on behalf of their estate and what actions that person(s) can take with regard to property.  When a person dies without a will, they are said to have died intestate.  The Estates Code sets forth procedures for probating the estates of both testate and intestate individuals.

Wills are not required to be probated in Texas, however title companies prefer that they be probated and the statutory requirement followed during the probate process.  It typically takes several months to probate a will in Texas.  An application and the will must be filed with the probate court, the court must approve the application and appoint an Executor (generally the person or persons named in the will if the person dies testate) or an Administrator, notices must be published so that creditors and anyone else interested in the estate can make their claim and an inventory of the assets of the estate must be prepared and approved.

Probates where the Will allows for the sale of property and in which the Probate Court appoints and Independent Executor or Independent Administrator do not require any further action by the Probate Court.  If the Will does not allow for the sale of property, or if the probate is a Dependent Administration, Court approval may be required in order for the property to be sold.  In a Dependent Administration, there is a four step process that the Administrator must follow in order to sell the property which includes filing an Application with the Court to sell the property, Reporting to the Court that the Property is under contract and getting a Decree from the Court affirming that the property can be sold.  This four step process may take in excess of thirty days to complete.

If you have a property that is currently part of an estate, it is a good idea to contact a title company before you list the property for sale so you can understand both the statutory and title company’s requirements.  This will allow you to set reasonable timing expectations for your prospective buyers.

If you would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.                       Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.




The Texas Homestead and Transferring Title

The Texas Homestead and Transferring Title

Texas law protects an individual or family homestead against forced sale to pay debts of general creditors.  A homestead is generally defined as real property owned by the individual or family where the individual or family resides.  A family homestead may be the separate property of one spouse or community property of both spouses, and a family may have only one homestead under Texas law.  Although property may be the separate property of one spouse, either because it was purchased as or with separate property or was agreed to be separate property by both spouses, the status of property as a homestead brings provisions from the Texas Family Code and Texas Estates Code into play.

The Texas Family Code Section 5.001 requires, with limited exception, that both spouses join in the sale, conveyance or encumbrance of homestead property, regardless of whether the property is the separate property of one spouse.  This means that, even if you inherited your bungalow in the Heights or bought it while you were single, the Title Company will require your spouse to execute any Deed to sell the property, or Deed of Trust if you refinance the existing mortgage or take out a Home Equity loan.  Failure of both spouses to sign the Deed or Deed of Trust means the conveyance was not complete and subjects the Title Insurance company to future claims against the title policy(ies) issued.

Likewise, several sections of the Texas Estates Code are applicable to homestead property.  Surviving spouses and minor children of a deceased person have the right to occupy homestead property after the death of the deceased, even if the deceased had a will that bequeathed the property to someone else.  For example, if a property owner remarries late in life and executes a will leaving his home to his children, the status of the property as homestead gives the new spouse the right to occupy the homestead for the remainder of his or her life.  A Deed from the Executor to the children will not extinguish the surviving spouse’s right to occupy the property, and a Title Company will require the surviving spouse to join in any sale, conveyance or encumbrance of the homestead property.

If you are selling or borrowing against your homestead and would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.

What to look for in a Title Company

We’ve provided a variety of Helpful Tips on our site with lots of great information regarding our title services. Below is a video that will help answer the many questions you might have when looking for a title company to work with. Enjoy.