HBA-TBM S.B. 198 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 198
By: Moncrief
Business & Industry
3/4/2001
Engrossed



BACKGROUND AND PURPOSE 

Executory contracts involve future obligations on the part of a seller and
purchaser and are often utilized when a purchaser is unable to obtain
financing for real property.  With an executory contract for a home, the
purchaser makes payments to the seller and at the end of a specified period
of time, if the purchaser is unable to obtain financing, those previous
payments are considered rent.  Otherwise, the payments are applied toward
the purchase price.  Under current executory contract law, additional
protections are provided to purchasers in economically distressed areas.
Senate Bill 198 extends protections to purchasers throughout the state
regarding real property sold through an executory contract.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

Senate Bill 198 amends the Property Code relating to executory contracts
for the conveyance of real property.  The bill removes the current income
and geography brackets so that executory contracts for conveyance apply
statewide for a transaction involving real property used or to be used as
the purchaser's residence or as the residence of a person related to the
purchaser within the second degree of consanguinity or affinity (relative).
The bill does not apply to a transaction involving the sale of state land,
as well as the sale of land by the Veteran's Land Board under an executory
contract (Sec. 5.062). 

The bill provides that an executory contract is enforceable only when the
contract is in writing and signed by the party to be bound or that party's
representative.  The bill also provides that any oral agreements are
superseded by the contract (Sec. 5.072).  When negotiations take place in
any language other than English, a copy of the contract is required to be
in the language of the negotiations.  The bill also requires the attorney
general to provide translation services, upon request of the seller, and
provides for the funding of this service (Sec. 5.068).   The bill requires
the seller to record the contract and disclosure statement on or before the
30th day after the contract is executed (Sec. 5.076). 

The bill provides that before an executory contract is signed by the
purchaser, the seller is required to provide a tax certificate from the
collector for each taxing unit that collects taxes on the property, and a
copy of any insurance policy, binder, or other evidence relating to the
property that indicates the names of the insurer and the insured, a
description of the property, and the amount of property insurance (Sec.
5.070).  The bill prohibits the seller from charging any fee similar to a
prepayment penalty if the purchaser elects to pay the entire amount due
under the contract before the payment date (Sec. 5.071).  The  notice of a
default on an executory contract must be sent by registered or certified
mail, return receipt requested (Sec. 5.063). 

S.B. 198 provides that a remedy of rescission or of forfeiture and
acceleration against a purchaser in default may be enforced only if the
purchaser fails to cure the default within the 60-day period, rather than
if the purchaser has paid only a percentage of the purchase price, and if
the seller provides notification to the  purchaser.  This provision does
not apply to parts of the contract covering equity protection and the sale
of property (Sec. 5.064).  In the event that a seller designates a trustee
to sell a purchaser's interest in a property, the seller must warrant that
the property is free from any encumbrance (Sec. 5.066).  

The bill modifies the contents of the annual accounting statement that the
seller is required to provide the purchaser.  The bill provides that a
seller who fails to submit the annual accounting statement is liable to the
purchaser for a specified amount of liquidated damages and attorney's fees
(Sec. 5.077).  Every named insured to an executory contract is required to
inform the insurer of the contract for conveyance and the term of the
contract, and the name and address of any other party to the contract no
later than the 10th day after coverage begins (Sec. 5.078).  A named
insured who currently has insurance coverage relating to property subject
to an executory contract shall notify the insurer no later than January 1,
2002 (SECTION 3).  The bill requires the insurer who disburses proceeds for
damaged property to issue proceeds jointly to the purchaser and seller
designated in the contract.  If proceeds are disbursed, the bill requires
the purchaser and seller to ensure that the proceeds are used to repair,
remedy, or improve the condition of the property (Sec. 5.078).  

The bill provides that a seller who fails to transfer the title upon
receipt of the final payment is liable for reasonable attorneys' fees and
liquidated damages.  In an action against the inheritor of the seller by
the purchaser, the court may waive payment of the liquidated damages and
attorney's fees if it finds that the inheritor is required to obtain a
court order in order to transfer the title and appears to be diligently
attempting to do so (Sec. 5.079). The bill stipulates that a failure on the
part of the seller or purchaser to comply with provisions relating to the
tax payment and insurance coverage disclosure provisions, the provisions
prohibiting oral agreements, and the proper disposition of insurance
proceeds constitutes a false, misleading, or deceptive act that is subject
to action and a cancellation of the contract (Secs. 5.070, 5.072, 5.078,
and SECTION 3).   

The bill sets forth exemptions to certain provisions for a purchaser of
property who is a relative of the seller and has waived the applicability
of the provisions in a written agreement (Sec. 5.062).  A purchaser may
pledge the interest in the property to obtain a property improvement loan
if the executory contract was entered into before September 1, 2001, rather
than September 1, 1995 (Sec. 5.075).   

EFFECTIVE DATE

September 1, 2001.