Greiner Law Corp.

Close this search box.

The Ultimate Guide to Executory Contracts in Real Estate


Navigating the challenges of real estate transactions can be daunting, especially when it comes to executory contracts in real estate. These are ongoing agreements where both parties have yet to fulfill their obligations completely.

Key Points to Know:
Definition: An executory contract is an agreement with unfulfilled duties on both sides.
Examples: Real estate leases, purchase agreements, equipment leases, and development contracts.
Distinction: Unlike executed contracts (which are fully completed), executory contracts are still in progress.
Legal Framework: These contracts are protected and governed by specific laws, notably in real estate contexts like leases and escrow processes.

Understanding the basics of executory contracts is essential for both buyers and sellers to navigate their legal rights and responsibilities effectively. This guide will explore what these contracts entail, the risks involved, the legal requirements, and more.

Infographic with definition, examples, and legal context of executory contracts in real estate - executory contract real estate infographic infographic-line-5-steps

Understanding Executory Contracts


An executory contract is a type of agreement where both parties have ongoing obligations that must be fulfilled over time. Unlike executed contracts, which are fully completed, executory contracts are still in progress. This means that the contract is not fully executed until all specified actions are performed by each party.

Real Estate Context

In real estate, executory contracts are common and cover various types of agreements. These contracts often involve ongoing obligations related to property transactions. Here are some examples:

  • Real Estate Leases: The landlord is obligated to provide a habitable space, while the tenant must pay rent.
  • Development Contracts: A property owner contracts a developer to improve or develop the property over a specified period.
  • Escrow Agreements: A neutral third party holds funds or property until all conditions of the sale are met, such as inspections and title clearances.

real estate lease - executory contract real estate


A lease-to-own arrangement, also known as a rent-to-own agreement, is a specific type of executory contract in real estate. This setup allows the buyer to live in the property and pay rent with the option to purchase the property at the end of the lease term.

How It Works:

  1. Initial Agreement: Both parties agree on a purchase price and terms.
  2. Lease Period: The buyer pays rent, a portion of which may go toward the purchase price.
  3. Option to Buy: At the end of the lease period, the buyer can choose to purchase the property.

Example: Imagine you find a house you want to buy but can’t secure financing immediately. You enter a lease-to-own agreement with the seller. You pay monthly rent, and after a few years, you have the option to buy the house, using part of your rent payments as a down payment.

Key Elements

Understanding the key elements of an executory contract is crucial for both buyers and sellers:

  • Obligations: Each party has specific duties to perform over the contract’s term.
  • Performance: The contract remains executory until all obligations are fulfilled.
  • Validity: The contract must meet legal requirements to be enforceable.
  • Enforceability: Both parties must adhere to the terms, or face legal consequences.

By grasping the fundamental aspects of executory contracts, you can navigate your real estate transactions more effectively.

Next, we’ll delve into the risks and protections associated with these contracts to ensure you’re well-prepared for any challenges that may arise.

Key Elements of Executory Contracts

Understanding the key elements of an executory contract in real estate is essential for navigating these agreements. Let’s break down the main components:


In an executory contract, both parties have ongoing obligations. For example, in a real estate lease, the landlord must provide the property, and the tenant must pay rent regularly. Each party’s duties should be clearly outlined in the contract to avoid misunderstandings.

Example: In a development contract, the property owner may be required to provide access to the land, while the developer must complete construction within a specified timeframe.


Performance refers to the actions each party must take to fulfill their obligations. The contract remains executory until these actions are completed. Regular monitoring and compliance checks ensure both parties meet their commitments.

Fact: In a real estate purchase agreement, the contract is not fully executed until the closing date when the property title is transferred, and the buyer pays the purchase price.


For an executory contract to be valid, it must meet certain legal requirements. These include:

  • Full names of the parties involved.
  • Actions each party must take.
  • Conditions for completing those actions.
  • Timelines for when actions must be completed.

Tip: Always ensure the contract is in writing and signed by both parties to avoid disputes.


Enforceability means that both parties must adhere to the contract terms or face legal consequences. If one party fails to perform their obligations, the other party can seek legal remedies.

Case Study: In Texas, if a seller fails to provide necessary disclosures during the escrow process, the buyer can legally withdraw from the contract and potentially seek damages.

By understanding these key elements, you can better manage your executory contract real estate transactions and ensure all parties fulfill their obligations.

Next, we’ll delve into the risks and protections associated with these contracts to ensure you’re well-prepared for any challenges that may arise.

Risks and Protections in Executory Contracts

When dealing with executory contract real estate, it’s crucial to understand the risks and protections involved, both for buyers and sellers.

Buyer Risks

Equity Delays: One significant risk for buyers is that they don’t gain equity in the property until all contract terms are met. This means if you stop paying or break the contract, you could lose all the money you’ve paid so far.

Limited Rights: While the contract is active, buyers can’t sell the home or use it as collateral for loans.

Recording Issues: Not all sellers comply with the requirement to record the contract, which could leave buyers without essential protections. If the contract isn’t recorded, the buyer’s equity protections can be compromised.

Seller Risks

Technical Requirements: Sellers face risks if they fail to meet all the technical requirements outlined in the contract and Texas Property Code Chapter 5. Non-compliance can lead to penalties, even if the seller acted in good faith.

Foreclosure Process: If a buyer has paid 40% of the sale price, made 48 monthly payments, or if the contract is recorded, the seller must go through a foreclosure process rather than simply evicting the buyer. This process can be time-consuming and costly.

Equity Protection: The 40 or 48 Rule

Texas has specific protections for buyers under the 40 or 48 Rule. If you’ve paid 40% of the sale price, made 48 monthly payments, or if the contract is recorded, you have some equity protection. In these cases, if you default, the seller must go through foreclosure instead of basic eviction. This means the property will be sold, and any excess funds after paying off the remaining contract balance will go to you, the buyer.

Foreclosure vs. Eviction

Foreclosure: If the 40 or 48 Rule applies, the seller must foreclose on the property. Foreclosure involves selling the property to pay off the remaining balance. The buyer might receive any surplus funds from the sale.

Eviction: If the buyer hasn’t met the 40 or 48 Rule criteria and defaults, the seller can evict the buyer. This means the buyer loses all the money paid up to that point and must vacate the property.

Understanding these risks and protections can help you navigate the complexities of executory contract real estate transactions. Next, we’ll explore the legal requirements and rights under these contracts to ensure you’re fully informed.

Legal Requirements and Rights

Understanding the legal requirements and rights in an executory contract real estate transaction is crucial. Let’s break down these key areas:

Texas Property Code

The Texas Property Code is the primary legal framework governing executory contracts. It lays out the obligations for both buyers and sellers. Some critical sections include:

  • Section 5.067: Allows sellers to place a lien on the property for providing utility services or if agreed upon by both parties.
  • Section 5.068: Requires contracts to be written in the language primarily used during negotiation.
  • Section 5.078: Details how insurance proceeds are split between buyer and seller.

Buyer Rights

Buyers have several rights under the Texas Property Code, ensuring they are well-informed and protected:

  • Right to Information: Buyers can request a tax certificate showing taxes paid, owed, delinquencies, and penalties. They are also entitled to a copy of any insurance policy on the property.
  • Annual Accounting Statement: Buyers have the right to receive an annual statement detailing the total amount paid, the amount still owed, taxes paid, insurance payments, and any insurance proceeds collected and used.
  • Financing Terms: Buyers must be informed of the property price, interest rates, total amount payable, late charges, and a statement that no prepayment penalty will be charged.

Seller Duties

Sellers have specific duties to ensure transparency and compliance:

  • Disclosure: Sellers must disclose any issues with the property, whether it is under a homeowners association, and if it is in a recorded subdivision.
  • Recording: The contract must be recorded within 30 days of signing.
  • Notification of Breach: If a buyer breaches the contract, the seller must notify them in writing, specifying the violation, the amount owed, and the intended action.

Annual Accounting Statement

The annual accounting statement is a critical document for buyers. It must include:

  • Total amount paid.
  • Total amount still owed.
  • Remaining number of payments.
  • Amount paid in taxes and insurance.
  • Amounts collected from insurance proceeds and how they were used.
  • Any changes in insurance coverage.

Financing Terms

Buyers have the right to know the financing terms of the contract. This includes:

  • Property Price: The agreed-upon price for the property.
  • Interest Rates: The rates charged under the contract.
  • Total Payment: The total amount the buyer will pay, including interest.
  • Late Charges: Whether late charges apply and their amounts.
  • Prepayment Penalty: A statement that no prepayment penalty will be charged for early payments.

Breach Notification

Under Section 5.063 of the Texas Property Code, sellers must notify buyers if they breach the contract. The notice must:

  • Be in writing.
  • Specify the part of the contract violated.
  • State the amount owed.
  • Outline the seller’s intended action.

This structured approach ensures that both parties are aware of their rights and responsibilities, minimizing potential disputes and fostering a transparent transaction process.

Next, we’ll delve into how executory contracts interact with bankruptcy proceedings.

Executory Contracts and Bankruptcy

Executory contracts play a crucial role in bankruptcy proceedings. When a company files for bankruptcy, it must decide whether to assume or reject its executory contracts. This decision can significantly impact the debtor’s financial recovery and the interests of creditors.

Bankruptcy Code

Under the Bankruptcy Code, specifically Chapter 11, the debtor (the company filing for bankruptcy) has the right to assume or reject executory contracts. This flexibility allows the debtor to manage contracts in a way that best supports their reorganization plan.

Assumption of Contracts

Assuming a contract means the debtor intends to continue fulfilling its obligations under the contract. This often occurs when the contract is beneficial to the debtor’s business. For example, a retailer in bankruptcy might assume contracts with key suppliers to ensure a steady flow of inventory.

Case Study: In the case of Mission Product Holdings, Inc. v. Tempnology, LLC, the U.S. Supreme Court ruled that a debtor’s rejection of a trademark license does not terminate the licensee’s rights to use the trademark. This decision highlights the importance of assumption in maintaining valuable business relationships during bankruptcy.

Rejection of Contracts

Conversely, rejecting a contract relieves the debtor of its future contractual duties. This is often done when a contract is burdensome or no longer serves the debtor’s interests. The bankruptcy court must approve these decisions, ensuring they are in the best interests of the debtor’s estate and its creditors.

Example: A company might reject leases for underperforming store locations to cut costs and streamline operations.


During bankruptcy, the debtor often operates as a debtor-in-possession (DIP), meaning they retain control of their assets and business operations. The DIP must carefully manage executory contracts to maximize the value of the bankruptcy estate.

Quote: “Executory contracts can be a double-edged sword in bankruptcy. While they provide flexibility, they also require strategic decision-making to protect the debtor’s interests and those of the creditors.” – David S. Kupetz, Bankruptcy Expert

Understanding the dynamics of executory contracts in bankruptcy is essential for navigating these complex legal waters. Next, we’ll explore how Greiner Law Corp can assist you in managing these contracts effectively.

Navigating Executory Contracts with Greiner Law Corp

When it comes to managing executory contract real estate, Greiner Law Corp is your trusted partner. Our team specializes in guiding clients through the complexities of these contracts, ensuring their interests are protected every step of the way.

Expert Legal Support

At we understand that executory contracts can be daunting. These contracts often involve ongoing obligations and can be subject to various risks and legal requirements. Our expertise lies in crafting clear, comprehensive contracts that minimize risks and ensure compliance with all legal standards.

Tailored Solutions

Every client has unique needs and goals. Whether you’re a buyer or a seller, we tailor our approach to align with your specific objectives. Our goal is to provide peace of mind and a seamless experience, from the initial agreement to the completion of all contractual obligations.

Practical Guidance

Navigating an executory contract real estate requires practical solutions and efficient processes. We focus on making real estate transactions straightforward and hassle-free. Our business-oriented approach ensures that all legal requirements are met without unnecessary complications.

Case Study: Success in Action

Consider the case of a client who was involved in a complex lease-to-own agreement. With our guidance, they were able to understand their obligations, negotiate favorable terms, and successfully complete the contract. This not only secured their investment but also provided a clear path to property ownership.

Legal Compliance and Risk Management

We prioritize legal compliance and risk management. By regularly reviewing key provisions and conducting risk assessments, we help our clients anticipate future actions and mitigate potential vulnerabilities. Our proactive approach ensures that all parties adhere to their obligations, reducing the likelihood of disputes.

Continuous Support

Our commitment to our clients doesn’t end once the contract is signed. We provide ongoing support to ensure that all contractual obligations are met. This includes periodic audits, due diligence, and assistance with any issues that may arise during the contract’s term.

Why Choose Greiner Law Corp?

  • Expertise: Deep understanding of real estate law and executory contracts.
  • Tailored Solutions: Customized approach to meet your unique needs.
  • Practical Guidance: Focus on efficient, straightforward processes.
  • Ongoing Support: Continuous assistance throughout the contract’s term.

Navigating the complexities of executory contract real estate doesn’t have to be overwhelming. With Greiner Law Corp by your side, you can confidently manage these contracts and protect your interests.

Next, we’ll delve into the conclusion and discuss the importance of effective management and legal compliance in real estate transactions.


Effective Management

Proper management of executory contract real estate is crucial for ensuring that all parties meet their obligations and that the contract progresses smoothly. Utilizing tools like Contract Lifecycle Management (CLM) systems can streamline the entire process, from creation and negotiation to execution and renewal. These tools help in:

  • Tracking key dates and milestones: Ensure you never miss a deadline.
  • Automating reminders and alerts: Stay on top of contractual obligations.
  • Facilitating collaboration: Enhance communication between all parties involved.

By effectively managing these contracts, you minimize risks and avoid potential disputes.

Legal Compliance

Ensuring legal compliance is another critical aspect. Executory contracts must adhere to various legal requirements, including those outlined in the Texas Property Code. Non-compliance can lead to severe consequences, such as penalties, disputes, and reputational damage. Here are some steps to maintain compliance:

  • Regular audits: Periodically review contracts to ensure all parties are meeting their obligations.
  • Risk assessments: Identify and mitigate potential vulnerabilities.
  • Training and education: Equip your team with the knowledge they need to manage contracts effectively.

Greiner Law Corp

At Greiner Law Corp, we specialize in navigating the complexities of real estate contracts, including executory contracts. Our expertise ensures that you:

  • Meet all legal requirements: Stay compliant with industry regulations and internal policies.
  • Protect your interests: Tailored solutions that align with your unique needs.
  • Streamline processes: Efficient and straightforward contract management.

We are committed to providing ongoing support and practical guidance to help you manage your contracts effectively.

Navigating the intricacies of executory contract real estate can be daunting, but with Greiner Law Corp, you can approach these challenges with confidence. Let us help you build a solid foundation for your real estate transactions, ensuring effective management and legal compliance every step of the way.


For more information Call:


Reach Out Now


Recent Blog Posts:

related posts