Changes to Practice Notes—March 2020
Chapter 1Ethics and Professional Conduct
§ 1.5:3Legal Fees
The sixth paragraph was added, discussing Rohrmoos Venture v. UTSW DVA Healthcare, LLP on recovery of attorney’s fees from an opposing party.
§ 1.10Technological Competence
The section was added.
§ 1.11Duty to Report Ethical Violation; Peer Assistance Program Alternative
The section was added.
§ 1.12Texas Lawyers’ Assistance Program
The section was added.
Chapter 2Laws Affecting Real Estate
§ 2.1Abandonment
The section was updated to note that chapters 72 and 74 of the Texas Property Code were revised in 2019.
§ 2.5Ad Valorem Taxes
The section was revised to reference additional methods for governmental entities to obtain taxable property.
§ 2.16Annexation
The section was updated to note that chapter 43 of the Texas Local Government Code was revised in 2019 to eliminate unilateral annexations.
§ 2.54Construction Liability Claims on Public Projects
The section was added.
§ 2.63 Deeds
The section was revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
§ 2.66 Disaster Recovery Relief
The section was added.
§ 2.67 Disclaimer of Interest in Decedent’s Estate
The section was revised to reflect repeal of statutes.
§ 2.68 Disclosure of Interested Parties When Contracting with Governmental Entities
The section was revised to reflect additional contractual circumstances requiring disclosures.
§ 2.69 Disclosures and Notices
Item 1 was revised to reflect revisions to the seller’s disclosure of property condition. Paragraph 20 was revised to reflect changes to statutory requirements for including the confidentiality notice. Paragraph 27 was added.
§ 2.98 Family Law
The final sentence was added to discuss agreements incident to divorce or annulment.
§ 2.110 Foreign Ownership of Real Property
The section was revised to include information on the Committee on Foreign Investment in the United States.
§ 2.122 Handguns
The section was renamed (formerly License to Carry Handguns). The section was revised to include restrictions on prohibitions by property owners associations, signage and notice requirements, and criminal conduct.
§ 2.138 Insurance Claims
The section was revised.
§ 2.147 Landowner’s Bill of Rights
The Attorney General’s website was updated.
§ 2.165 Mechanic’s Liens
The section was revised to reflect statutory requirements for including the confidentiality notice.
§ 2.167 Military Personnel
The section was revised to reference interest accrual on deferred delinquent tax.
§ 2.176 Mortgage Loan Originators
The first paragraph was revised to include information on temporary authority to originate loans.
§ 2.182 North American Free Trade Agreement (NAFTA)
Reference to the United States—Mexico—Canada Agreement was added.
§ 2.184 Notaries Public
Reference to authenticating electronic records was added.
§ 2.189 Parking
Reference to residential parking permits was added.
§ 2.201 Property Owners Associations
References to prohibitions against restricting lemonade sales or firearms were added.
§ 2.209 Recording
Reference to authenticating electronic records was added.
§ 2.221 Right of Rescission
Statutory references were updated.
§ 2.248 Surveyors
Reference to Tex. Occ. Code ch. 1001 was added.
§ 2.251 Swimming Pools and Spas
The section was renamed. References to pool enclosures and the International Swimming Pool and Spa Code were added.
§ 2.262 Transfer on Death Deed
The section was revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
Chapter 3Preparation, Execution, Proof, and Recording of Documents
The chapter introduction
was revised to note that the term “instrument(s)” is used throughout the
chapter as its statutory meaning and generically as other documents.
§ 3.1Monetary Amount
The section was renamed.
§ 3.3Dates in Instruments
The section was revised.
§ 3.6Preparer of Instrument
The section was revised to include discussion of electronic filing.
§ 3.7:1Specificity of Description
The section was revised to include additional information on describing platted property.
§ 3.7:5Recording Reference
The section was revised.
§ 3.10:1Necessity for Acknowledgment
The second paragraph was added, referencing acknowledgment by online notaries public.
§ 3.10:3Short-Form Certificate of Acknowledgment
The section was revised to include limited liability companies.
§ 3.10:5Electronic Certificate of Acknowledgment
The section was added.
§ 3.11:2Personal Appearance before Officer
The second paragraph was added, referencing online appearances.
§ 3.11:3Acknowledger Must Be Identified by Officer
The fourth paragraph was added, referencing identity verification in online notarizations.
§ 3.11:4Acknowledger Must Acknowledge Signature before Officer
The section was revised to include limited liability companies.
§ 3.11:5Online Notarization
The section was added.
§ 3.12Requirements for Valid Certificate of Acknowledgment
The section was revised to reference new forms 3-30 and 3-31.
§ 3.12:6Certificate Must Recite That Signatory Acknowledged Instrument
The section was revised to include limited liability companies.
§ 3.13:1Proof by Jurat
The section was revised to include additional persons authorized to take affidavits.
§ 3.16Confidentiality Notice
The section was revised to reflect statutory revision of the definition of “instrument.”
Chapter 5Deeds, Bills of Sale, and Other Transfers
§ 5.8Correction Deed
The fifth and sixth paragraphs were revised to include additional case law, information on timing of corrections, and impact of recording.
§ 5.11Transfer on Death Deed
The section was revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
Chapter 6Promissory Notes
§ 6.4:11Spreading
Citations to the Texas Finance Code were updated.
Chapter 9Security Agreements
§ 9.5:5Perfection by Control
The section was revised.
Chapter 10Ancillary Loan Documents
§ 10.1General Considerations for Transfer of Note and Lien
The second paragraph was revised to reference form 10-25.
§ 10.1:5Confidentiality Notice
The section was revised to reflect statutory revision of the definition of “instrument.”
§ 10.3:2Instructions for Completing Modification and Extension Agreement
The section was revised to reflect statutory requirements for including the confidentiality notice.
§ 10.4Assignment of Rent
The section was revised and additional statutory citations were added.
§ 10.7Homestead Affidavits
The section was revised to include additional exceptions to prohibitions against homestead encumbrances.
§ 10.14
Statutory citations were revised.
§ 10.14:2High-Cost Home Loans
Additional information was added to the definition of high-cost home loans.
Chapter 11Home Equity Loan Documents
§ 11.1General Considerations
The section was revised.
§ 11.2Home Equity Loans Closed before January 1, 2018
The previous section (Property with an Agricultural Use Tax Exemption) was removed. The section was added.
§ 11.3:3State-Regulated Lenders
The previous section (VA-Guaranteed Loans) was removed, and the section was renumbered.
§ 11.5Restrictions on Open-End Credit
The paragraph on loan-to-value limit on additional advances was revised.
§ 11.9:2Guaranty
Reference was added to the VA refinance program.
§ 11.18:1Twelve-Day Disclosure for Home Equity Loans
The second paragraph was revised.
§ 11.25:12Requirements for Borrower’s Notification of Lender’s Failure to Comply
The section was revised.
§ 11.57 Instructions for Completing Notice Concerning Refinance of Existing Home Equity Loan
The section was added.
§ 11.58 Instructions for Completing Affidavit of Compliance
The section was added.
Chapter 13Residential Contracts for Deed
Case history was updated.
Chapter 16Water Rights Conveyancing Documents
§ 16.5:1Appropriative Water Rights
The second paragraph was revised to include updated information on the TCEQ’s review of challenged rules.
§ 16.7:2Beneficial Use
The section was revised to reference additional purposes for water use.
§ 16.42
The section was revised to add information on permissible transfer of groundwater on historically irrigated land.
§ 16.45:11Reserved Groundwater
The section was revised to add information on permissible transfer of groundwater on historically irrigated land.
Chapter 17Risk Allocation: Indemnity, Waiver, and Insurance
§ 17.2:2Drafting Considerations for Indemnities and Waivers
The seventh item in the numbered list was revised.
§ 17.3:1Categories of Insurance
Additional categories were added to property and liability policies.
§ 17.4:1Terminology and Structure
The first paragraph was revised.
§ 17.4:2Forms of Commercial Property Policies
The section was renamed, the basic and broad form coverages were revised, and the leased property paragraph was added.
§ 17.4:3Specialized Coverages
The section was revised. The paragraph previously named “Earthquake” was renamed. Information on the National Flood Insurance Program (NFIP) was updated.
§ 17.4:4Residential or Farm Property Insurance
The section was revised.
§ 17.4:5Amount of Proceeds
The paragraph on debris removal was revised.
§ 17.5:2Standard Form of General Liability Policies
The paragraph on commercial general liability, coverage A, was revised.
§ 17.5:9Umbrella or Excess Liability
The paragraph on umbrella liability policies was revised.
§ 17.6:3Additional Insured Endorsement Forms
Information was added on the limitations of the 2013 ISO additional insured endorsement forms. The paragraph on Owners, Lessees, or Contractors was revised. Information was added on the 2019 revisions of the ISO additional insured endorsement forms.
§ 17.11 Examples of Insurance Requirements
The section was added.
Chapter 19Commercial Construction Contract Documents
§ 19.4:2Stipulated Sum
The section was revised referencing form 19-2.
Chapter 20Contractual Mechanic’s Lien Documents
§ 20.1:4Other Consumer Protection Laws
The “Confidentiality Notice” section was revised to reflect statutory revision of the definition of “instrument.”
Chapter 23Restrictive Covenants and Property Owners Associations
§ 23.1:3Limitations of Covenants and Restrictions
The section was revised to include additional statutory restrictions on firearms and sale of lemonade.
Chapter 24Condominium Documents
§ 24.3:2Restrictions on Use, Occupancy, or Alienation
The section was revised.
Chapter 25Leases
§ 25.1:3Caution: Property Description
The section was revised to include additional case law on sufficiency of property descriptions.
§ 25.5:1Rent Payment by Check and Late Fee
The section was renamed and information was added on fees for late rent payment.
§ 25.5:2Right to Terminate Residential Leases in Certain Circumstances
The section was revised to include death of sole occupant tenants.
§ 25.11:5Tenant’s Right to Protest Appraised Value
The section was renamed and revised to include information on requirements for providing notice of appraised value.
§ 25.12:3Tenant’s Acceptance Letter
The section was revised.
Changes to Forms—March 2020
Chapter 3Preparation, Execution, Proof, and Recording of Documents
Form 3-30Electronic Certificate of Acknowledgment [Long Form]
The form was added.
Form 3-31Electronic Certificate of Acknowledgment [Short Form]
The form was added.
Chapter 4Sales Contracts and Transaction Guide
Form 4-22Seller’s Disclosure of Property Condition
Revisions were made to sections 4 and 6 to include additional information on previous flooding, previous water penetration, and flood risk. Old section numbers 6 through 8 were renumbered as 7 through 9.
Chapter 5Deeds, Bills of Sale, and Other Transfers
Form 5-25Revocable Transfer on Death Deed
The form instructions were revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
Form 5-26Revocation of Transfer on Death Deed
The form instructions were revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
Form 5-27Partial Revocation of Transfer on Death Deed
The form instructions were revised to reflect the removal of statutory forms from chapter 114 of the Texas Estates Code.
Chapter 10Ancillary Loan Documents
Form 10-1Transfer of Note and Lien
The notice of confidentiality rights was added.
Form 10-2Release of Lien
The notice of confidentiality rights was added.
Form 10-3Partial Release of Lien
The notice of confidentiality rights was added.
Form 10-4Modification and Extension Agreement
The notice of confidentiality rights was added.
Form 10-5Assignment of Rent
The notice of confidentiality rights was added.
Form 10-9Affidavit of Homestead
Affiant’s third recital was revised to reflect that form can be used for lien types other than purchase.
Form 10-17Loan Agreement
The form instructions on Insurance Rider to Loan Agreement were revised.
Form 10-19Notice of Penalties for Making False or Misleading Written Statement
The warning was revised to track statutory language.
Form 10-21Release of Collateral Transfer of Note and Lien
The notice of confidentiality rights was added.
Chapter 16Water Rights Conveyancing Documents
Form 16-8Partial Release of Lien [Water Rights On-Site Production]
The notice of confidentiality rights was added.
Form 16-11Partial Release of Lien [Water Rights Off-Site Production]
The notice of confidentiality rights was added.
Form 16-14Assignment and Assumption of Lease [Water Rights]
The notice of confidentiality rights was added.
Form 16-24Notice of Lender’s Interest in Water Rights and Permit
The notice of confidentiality rights was added.
Form 16-26Groundwater Conservation District Application for Transfer of Ownership of Wells and Operating and Transport Permits
The notice of confidentiality rights was added.
Chapter 21Involuntary Mechanic’s Lien Documents
Form 21-13Release of Mechanic’s and Materialman’s Lien
The notice of confidentiality rights was added.
Form 21-14Partial Release of Mechanic’s and Materialman’s Lien
The notice of confidentiality rights was added.
Chapter 23Restrictive Covenants and Property Owners Associations
Form 23-1Declaration of Restrictive Covenants [with Property Owners Association]
A definition of “short term renting” was added. Paragraphs C.1. and C.2.q. were revised to include optional clauses on short term renting. Paragraph G.5.a. was revised.
Form 23-4Bylaws of [name of property owners association] [, Inc.]
The definition of “voting members” was revised. Paragraph A.7. was revised to include additional options for obtaining a quorum. Paragraph A.9. was renamed and revised. Paragraph B.2. was added, and the remaining paragraphs in section B were renumbered. Subsections iii. and iv. were removed from paragraph B.6.b.
Form 23-10Required Information Applicable to the Property Including Resale Certificate
The form instructions were revised. “Articles of Incorporation/Certificate of Formation” was added to the Required Attachments, and the list was renumbered.
Chapter 24Condominium Documents
Form 24-1Declaration of Condominium
Section C. and paragraphs C.1. and C.2. were renamed. Paragraphs C.1. and C.2.g. were revised. Paragraph D.8. was revised.
Form 24-6Resale Certificate
The form was revised to include additional attachments.
Form 24-17Affidavit of Redemption
The form was added.
Chapter 25Leases
Form 25-1Lease [Basic]
Paragraphs B.1.d., B.1.m., D.2., D.4., D.10., and D.12. were revised.
Form 25-2Retail Lease
Paragraphs B.1.d., B.1.q., C.1.f., D.2., D.4., D.10., and D.12. were revised.
Form 25-3Office Lease
Paragraphs B.1.d., B.1.o., C.1.h., D.2., D.4., D.10., and D.12. were revised.
Form 25-5Residential Lease
Paragraphs B.1.d., D.3., and D.7. were revised. Paragraphs D.1. and D.9. were added, and the remaining paragraphs in section D were renumbered. Minimum policy limits on the Insurance Addendum to Lease were revised.
Form 25-6Industrial Lease
Paragraphs B.1.d., B.1.s., C.1.e., D.2., D.4., D.10., and D.12. were revised.
Form 25-7Hunting Lease
Paragraphs B.1.d., B.1.o., D.2., D.3., D.7., and D.9. were revised.
Form 25-8Agricultural Lease
Paragraphs B.1.d., B.1.l., D.2., D.3., D.8., and D.10. were revised.
Form 25-9Grazing Lease
Paragraphs B.1.d., B.1.l., D.2., D.8., and D.10. were revised.
Form 25-10Cell Tower Lease
Paragraphs B.1.e., B.1.p., D.2., D.4., D.10., and D.12. were revised.
Form 25-18Subordination of Landlord’s Lien
The form was added.
Form 25-19Lease Assignment
The notice of confidentiality rights was added.
Form 25-35Memorandum of Lease
The notice of confidentiality rights was added.
Form 25-36Insurance Addendum to Lease [Long Form]
Paragraph A.2.b. was revised. In section B, the minimum policy limit was revised.
Chapter 26Miscellaneous Documents
Form 26-32Partial Release of Judgment Lien
The notice of confidentiality rights was added.
Form 26-34Release of Judgment Lien
The notice of confidentiality rights was added.
Form 26-40Affidavit of Authority to Transfer
The form was added.
Form 26-41Affidavit of Termination of Authority to Transfer
The form was added.