Untitled Texas Attorney General Opinion

OF)rlCEOFTHEA~ORNEY GENERALOFTEXAS AUSTIN Ronorable 0. P. Lockhsrt, Chairman Board of Insurance Comnlsaionera Austin, Texas Dear 81rr opinion Llo. o-3924 Rez Investment8 of a general oawalty iwuranae oompany. This department has reoeived your requert for an opin- ion. Ue net out belov the pertinent part of ~rourletter aud the enolo8urea contained therein. "Please adv%se if a general oa8ualtP lnaur- anoe oompany such a8 the Employer8 Oarualty Com- pany of Dallar, Tex68, operating under the provl- slons of Chapter 18, Title 78 of the Revised Olrll Btatutes of fexab, aud governed in it8 ia- vedment polioy by Articles lr705-6, and 4993, may make the lessor a loan and aooept a8 8eourlng therefor a mortgage note on the leesor' interest under the lease and asalgnment ot rental8 due, under what the Federel HOU8ing Act delsrlgnates a8 Gla88 3 108118." The enolosure read8 aa follov8: “As you lmov the @over of this oompany to Invert funds OOU8titUting 8 p8X’t Of it8 OEipit~~ md 8 i8 regulated by the provision8 of Art8. 4705, 68 ?&id 4993 of the Texas 8tatUte8 a8 amended. hll three of the8e articlea, aa now amended, authorice investments in first mortgagee or lime upon real eatate under oertati expressed condltlonrs. "Under Title 1 of the Federal Rouelng Act (8eo- tiona 1702-1705 IJ8 C A), the Federal Houaing Admln- 18trator La Fpauring what L8 knovn as Claaa 3 loans. Such a loan is made to the lessee of umimproved real eetate under a form of lease presorlbed by the Fllk. I ‘; ganorable 0. P. WA&art, Chalraan, Page 2 Such lease le for a term of not 1~8s than 31 year8, prOVide8 iOr an arm-1 rental of 80 mtmh per year peyabls to the ou'Z&er Of the property and pl’OVidk38 that the lessee shall have the option of purcha8Ing the property at -'time for a givea aum. The op- tlon price 18 the fair value of the -tiproved prop- erty aa detennIned by the FE& and the annual rental 18 fixed OXl a b88iS t0 yield the le88Or a 6$ retUrn en that valuation. The leare olao provided that If the lerree default8 In the payment of the annual rental, or fat18 to perform any Of the other oovonents oontalned In the l-80, and rails to oure ths default ulthln 90 days, the learre vlll terminate and the lerrrorcan re-enter and take po88e86lon of the tit, together vith all Improvement8 vhloh have been ereat- ed thereon by the 1088ee. "%-IOle8888 in tUlllbOa'XOlf8 a lUffiOi8Xlt8m Of SlM8y tollth8 -08e Of 8lWOttng illQXWVOllt8~t8 00 the pl'O~l'ty,Md t0 8OOW th8 lO&ll, 8XbQUt88 to the lendsr a mOrtgage en the learehold 88tate a8 well as all other wt.8 loquired by him under the lease. The fO'orm Of thf8 mortgage or deed Of trp8t I8 pre- 8Orib8d by the FE& and &mOn$ other tbing8, %t pro- vides that the mortgagsevill oolleot the gmtmd rent- al from the lerre6 and pay It to the lelaor, aad.that In the‘event the 18888e fail8 to #ay the rental, the mortgage8 may do 60 and the uwuut 80 advenoed by $he Snortgagespill be reoured by mortgage. Loans of thl8 type 88Oured by a mrtgage on the lea8ehOld estate qualify folrinsuranoe under fltle 1 of the Fedora EOtI8i43Act, whbre nOt in 8x0088 Of )2500.00. "Under the foregoing arrangement the lessor 8tlll holds title to the plVfElf888,8ubj8Ot, Of @OW8e1 t0 the leaee and the option to puroharre therein oonti&lned. Uhen Improvements have been ereoted on the p-888, the lensorls seeuwity lr not only the lot, but also the zlmprovementepaid for by the FHILloan. Vnder FBA requirement8 the value of the lot a8 fIxed in the op- tion to purchase priae vi11 not exoeed approximately 25% of the total value of the lot and iprpPovement8. "!Fhequestion in whloh ve are intweeted is whether or not the lessor undelrthe above mentioned arrangement, following the completion of the lmprove- &norable 0. p. Lockhart, Chairman, Page 3 ments erected on the lot and the clortlugof the FIfAloan t0 the 1888ee, ha8 an intePe8t In the prop- erty of 8uoh charaater that our company aould make the lessor a loan, and accept as seourlty therefor a mortgage on the leseorte interest under the lesee and an.aesIgment of the rental due thereuuder. This company has had submitted to it several requemta for loana of this type, but before eating upon 8Uoh re- quests, ve think It neces8aPy to obtain through you an opIulon of the AttOrII8yGeneral on the question of vlretheror not 8Uoh lOan8 aPe Of a type in Vhiah this company may legklly fZIVeStit8 fund8. In the oa8e of each of these loans the amount of money vhloh the lesSOr d88ire8 t0 bOrrOV IS the tOhI VdUe Of the unimproved lot, this being the value of the lot fixed by FE)&and stated in the lea88 a8 the Option t0 pur- ohase price. Tlm8 should the loan be made Ye vould be lendIng 100% of the value whIah the property had prior to the time the Improvements vere ereoted by the lessee. Hovever, as above stated, at ths.dAte the lee8or hae come to us with his request for a loan the imprOV~nts ereoted by the le8a88 have enhaaoed the value of the property to euoh an extent that it8 map- ket value is considerably moc8 than 40$ above th8 a- mount of the reqUe8t8d loan, uhIoh ia the requIPement Set out In APtS. 4705, 4706 and 4993. FUi%h8IlUOZ'Es, the lesbor's Interest In the property whloh vould be mortgaged t0 U8 18 *uninoutubered,'Unb588 th8 FBA mortgage COVePing the 188~86'8 %tJt8P8@toan b8 uon- eldered as an lnoumberance againat the 18bsor18 in- teP8st.' APtlcles 4705, 4706 and 4993, Vernon's Annotated Civil 8tatUt88, gOVePn the inV88tment8 Of a g8n8l'alOa8llaltyinSUlUnO8 o=pany. Only OePtain tWCtIOn8 Of tho88 artiales are applloable to our situation here. They follow Article 4705. "The capital stock of any suoh Insurance company, except any vrltIng Life, Health and Aaoldent Insurance, shall oonalstt "3. In fir& mortgages upon unencumbered real e&ate in this atate l l *." %@tlO~b$SO. I',Loo~~E&, Gbalrm~sn,page 4 Article 4706. "Xl0company, exoept any writ; Ing Wfe, Health andaooldent Insuranoe, organized ImdeP the p~ovl4ions of this Ghapter 4hall Invest Its funds over and above its paid-up capital rtook in sny other manner than as fo11owsr '(b) In bonds or flrrt liens or unenoumbered r ea l l8ta te l l l.” Artlole 4993 pH4Crib88 the &USOUatOf Capital 8tOck that gM8~:?088Wlt~ CClllp8IliC8 XUSt h&V8 8lldthen add8 a8 fO11OV81 (That) 'Gapital shall be prrldup or inverted In l l l bond8 or fiP4t 1I8rUrUpon M8nCU4ibeP8d l'8al8Stat8 + f*.' The oonslstent uIIeof the phrase *unenoumbePed real es- tate" by the fP8i~CP8Of the Vapi0~8 8IUiC~entS is t0 be Peadlly n0ted. The 8upr8me GouPt of Texas In the 0088 of Ttwneb v. Ro88, s3 Tex. 218, 18 8. Y. 578, 15 L.R.A. 262, ably announoed what is nov a well knovn mile of rtatutery oan8traotlon, to-wit: 'It 18 the duty of a oowt to give~tome U8.4 in a 8frtUte the m?aDing vith l7hIohit m8 U8Od by the Isgl4latur8, if that oan be asoertaInedJ and to do this, if th8 wopd8 used be not euoh as have a peou.lIarmeaning when applied to an art 0~ trade vlth PefePenoe to vhloh they aP8 used In the statute, they 4hould be given their ordinarynmanlng, as the Lsgls- 1atuP8 must be pr88rOnedto have used them In that 881188in vhloh they aP8 ordinrrily tinderrtood." 888 also T. &IP. RR Go. v. Railroad GemmI4slo~ of Texas, 150 8.U. 878, 105 Texas 386. In the oa8e of Thomson v1 lo&e, 1 8. W. 112, 66 Texas 383, the Supreme Court of Texas adopted the follovlng defInltlon of the word "InoxnnbPano~e' or "enoumbranoet' 'In a legal sense the voPd ~inourabrancelmean8 an estate, Interest or right In land4, dilSln18hing their value to the genera1 OVLLer,a paramount right In or weight upon land whloh mrry 188Sen its value." Ronorable 0. P. Lookbart, Ghalnsan, Page ~5 Tiffany In hi8 treatl8e On Real Property define8 an ~~lLSb~MC8 63s 'every right t0 or interest in the land whioh uy subrist In third person8, to the diminution of the value of the land." Also: "Any right existing in another to use the land, or whereby the u8e of the owner 18 restricted, Is an inounbmnoe vUh3n the legal meaning of the wo r d. l Bull Q. Burton, 124 111.K 124, 227 X.X. 101. In the 8Ituatlon before us, the leaa ha8 a lea88 for v8 d M OptfOIlt0 pul'ohr8ethe ;le88Or'8int;el'eSt in the pxwpertyatanytlme. Further, In antePIng into the agreement the parties bind their rerpeotlve helrr, exeoutors, admfnirtzu- tOP8, 811008880~ and assiepla. It 14 our opinion that the w _.18 fact that an estate or Jesse for year8 outrtan~ 23 parson la weighted in a thl 8g4fWt the les8Or'8 b¶tOXWEt in the land COWtftUtb8 suoh an ensuabranoe within the meknIng of the term and oont&wy to the prOri81OIl8Of the 8tatUt88 a8 to pPeV8at the In~tU%Ulo@OOISpany trotsinverting it8 fuuda in the lWwor'8 Interest In the property. jbrth8rmor8, we think the les8eets option to purahase L8 it8elf 8n enomabranoewithin the meaning of the rules above dison88ed. ‘Phrr~ Ye adViS8 you. w8. tPUSt that thf8 8118V8P8 y0w qu8~tfOn~ YOura very truly ATTORRRX GR%ERAL OF TEXAS