This survey period continues with trends established during prior periods. Tax liens and foreclosure challenges dominate the secured real property arena, with cases based on “robo signing” now appearing. Attacks on residential foreclosures were plentiful, and the authors have selected the most illuminating of these cases to discuss. One court discussed and confused the requirements for a valid waiver of notice of intent to accelerate; hopefully, future courts will follow the logic set forth herein. Also addressed are cases dealing with recourse carve-outs and related procedural issues, and the fair notice doctrine, each of which provides good lessons to practitioners.
In the context of sales, a significant number of cases addressed breach of implied warranties and fraud in the inducement. One particular case on fraud in the inducement contains a majority, concurring, and dissenting opinions concerning the perplexing “as-is” clause, which continues to elude concise judicial interpretation and appropriate drafting. Quite a few cases from the survey period provide drafting lessons, again addressing disclaimer-of-reliance provisions, reverters, and legal descriptions. Easements and public roads also found their way into the cases, and the courts revisited causes of action for declaratory judgment versus trespass to try title and jurisdiction of the Justice Court for suits for possession versus those for title. Finally, the Texas Supreme Court dealt with the important issue of a rolling easement along the Texas gulf coast and found that there is none if the shoreline change is the result of an avulsive event.
J. Richard White, et al., Real Property, 1 SMU Ann. Tex. Surv. (2014)