The Common Law

Real estate & title issues

Numerous legal issues surround buying and selling real estate. I've asked Andrea Lowry, an Austin real estate attorney, to address some commonly asked questions about real estate transactions. – Luke Ellis When closing a real estate transaction, why does the title company need to know the parties' marital status?

Because Texas is a community property state, each spouse must join in a sale of property if he or she has resided in or on the property or if either spouse has claimed the property as a primary residence. This is true even if the spouse is not "on title." Also, when financing a home that is to become a primary residence, a spouse must sign the deed of trust, which creates a lien on the property. This requirement ensures that each spouse has knowledge of a loan secured by the homestead.

Why does the title company need to see a copy of the survey?

The survey is a drawing and legal description of the property used to locate and identify a property for legal purposes. A reliable legal description is necessary in order for a seller to properly convey title to real property. The title company uses this legal description in preparing a deed, and a proper legal description assures buyers that they are in fact buying the property they believe they are buying. In addition, both the buyer and the title company use the survey to identify where any improvements are located on the property, the existence and location of any easements affecting the property, whether or not there are any building lines restricting the placement of improvements on the property, and whether or not the existing improvements encroach on those building lines.

How and where can someone get a copy of his or her title?

Title to real estate is the warranty deed issued by the seller at the time of closing and filed with the county clerk in the county where the property is located.

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Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or

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