Statute of limitations may have expired for note
Q: I have the power of attorney for a person who is incompetent. I received a demand for payment on an unsecured/no interest promissory note that is more than 10 years old. It was supposed to have been paid when a specific house was sold, but the holder of the note claims it was never paid. The house was sold in 2005. I have noway of knowing for sure if it was paid or not. Do I have to pay it simply because the holder of the note claims that it has not been paid?
A: If the note came due when the house was sold, it should have been paid at that time. Had it been secured by a lien, the title company would have caught it and paid it off as part of the closing. However, if there is no record of payment, the statute of limitations could prevent the enforceability of the note if it came due seven years ago. You don’t mention the purpose of the note or any specifics of the transaction.
Q: I currently have a contract with a builder on a house that will be complete by the end of the month. In December, the lender contacted me with an issue withmy credit score. I worked to get this resolved for the next few weeks, but wasn’t having any luck. I went and spoke to the builder and explained my situation, at that time no agreement was made to cancel my contract nor opt out. About two weeks later, the lender contacted me and stated everything is good to go, that I am approved for more than the amount of my contract. I contacted the builder to find out the closing date, and they informed me they went ahead and signed another contract on the home on which I had a contract. The builder is telling me there is nothing they can do. They are telling me they will return all ofmy earnest money, or they will build the same house for the same amount for us again on another lot. My question to you is do I have a chance at fighting this and getting the home that I feel is rightfully mine, or should I just walk away?
A: These kinds of fights are expensive and seldom worth it. Now that your lender has given you approval to purchase, I’d take advantage of it and not cry over split milk. We suggest you take the builder up on his or her offer. The other good news is the builder is not trying to hold your feet to the fire over the prior contract. This may be your lucky day.
Q: I know I’ve seen it many times: Do not add wording to the contract. However, now I can’t find it anywhere. Can you help?
A: Checkwww.trec.texas.gov/formslawscontracts/ Rule.asp, Use of Standard Contract Forms, specifically subparts (d), (e), (f), (g) and (h).
Q: What is your opinion regarding “right of survivorship” real estate property deeds while both owners are still alive? I never hear this suggested. My husband and I are in our 70s, have no children, have a home without a mortgage and no other property that would require our will to be probated. We are wondering why deeds are not routinely made with this right of survivorship like is the routine with vehicles?
Affidavit of heirship seems to be the usual suggested way to go after a death. Only reason I can think of for not having our deed remade now with right of survivorship is it would not be a cost-saving because other legal things would have to be done. Also, at time of death and it would be an additional unnecessary expense. We hope you will address this.
A: The Texas community property and homestead laws have historically emphasized the family unit. The right of survivorship omits this in favor of the survivor, which cuts the rest of the family out of their ownership interest. So Texas law resists this form of ownership. You can achieve it under Texas law by creating separate property for each, then agreeing to hold it as joint tenants with a right of survivorship. Often referred to as “the poor man’s will,” it can eliminate a lot of issues upon the death of either party. It may be a good estate planning choice for you.