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Whether you’re buying or selling a home, dealing with a property dispute, or facing foreclosure, an experienced real estate lawyer can help. Finding a top rated attorney can allow you to navigate the many issues that come with obtaining, owning and using real property. They handle transfers of land, contests over ownership, zoning issues, lien searches, contract disputes and so much more. If you are looking for a qualified attorney near you, contact us today.
What is an Encumbrance?
An encumbrance is a right to, interest in, or liability against real estate. Encumbrances include mortgages, liens (voluntary or involuntary), easements, deed restrictions, encroachments, and licenses. Usually they do not prohibit passing title to the property, but they may diminish its value.
Liens
One such encumbrance comes via a mortgage lien or, in some states, a “deed of trust.” Both have the function of securing the borrower’s obligation to repay a loan. Judgment liens attach when a creditor sues and gets ruling that the owner owes them money. Depending upon the state, those who furnish labor and materials for construction or other improvements may have a machanics lien (also known as a materialman’s lien). Government agencies may also claim liens to collect unpaid taxes, assessments or fines.
Easements
Non-monetary burdens on land include a person’s ability to use or occupy someone else’s real property through an easement. Such an instrument authorizes ingress, egress and the ability to lay utility lines across the burdened lot. To protect the lines that deliver cable, electricity, gas and water, easements may limit where owners can erect structures on their own property. A legal advisor specializing in real estate matters can provide great information on restrictions on use of the parcels.
Foreclosures
The lawyer and buyer also need to know if the land is or has been in foreclosure. In this proceeding, the bank or lender repossesses and sells the realty when the borrower has defaulted on the loan. In foreclosure sales, the buyer purchases the land, which is subject to any existing higher-priority mortgages, judgments or other liens. Some title insurance companies may not accept foreclosed properties because of questions over the notice given to the owner-borrower or the risk of litigation.
The Importance of Reviewing Real Estate Titles
Real estate title refers to the rights someone has in land and its attachments. Most commonly, this concept raises the question of ownership. However, great and thorough title searches reveal more than the record owner. When you engage a local or other real estate lawyer for reviews of title, you seek to learn if others have claims to the realty which you are buying or otherwise getting from the owner. During a title examination, the lawyer must also be aware of multiple owners.
Types of Co-Ownership
There are several ways that multiple owners can hold title to real estate. Common forms of joint property ownership include the following:
Joint Tenancy
In most states, property deeded to spouses is considered to be owned by the marital unit rather than each spouse having a one-half interest. As such, one spouse cannot unilaterally borrow against or transfer the property. If one joint tenant passes away, the other automatically becomes the owner of the deceased person’s share, even if there’s a will to the contrary. This is referred to as the right of survivorship.
Tenants in Common
When the joint owners are not married, they generally hold as “tenants in common.” Each co-tenant can convey or encumber his or her interest. Unlike a joint tenancy, a tenant in common has no automatic right to inherit the property if their partner dies. When this happens, the deceased person’s share is left to whomever is listed in their will or living trust. If there is no will, the co-tenant’s heirs will inherit his or her shares. Accordingly, the title examiner will attempt to pull wills and other estate records to determine the heirs. Online obituaries are potential sources of information on heirs and their addresses so that the lawyer can contact them to sign deeds. Transfers by and judgments against each heir or co-tenant must be thoroughly checked and reviewed.
What Happens During a Real Estate Closing?
The contract formation and title reviews culminate in a real estate closing. During a closing, exchanges of money and deed transfers are accomplished under the direction of experienced lawyers. Federal laws require certain documents be prepared for the closing. One such is document is a Closing Disclosure. It tells the lawyer how to disburse the sale proceeds by showing items such as the price, how much is being borrowed, the amount of down payments, appraisal costs, title insurance fees, and how much the seller receives and the buyer must pay.
Once the sale closes and the deed transfer is complete, normally all obligations of the contract merge into the deed and vanish. If you want to sell and a buyer seems reluctant to accept unfinished housing, buildings or other realty, a specialist can prepare a good escrow agreement or serve as escrow agent. In furnishing these types of services, the escrow agent holds the sale proceeds, verifies that any unfinished items comply with the agreement or other promises, and then releases the sale proceeds to the seller.
What Real Estate Disputes Are Litigated in Court?
Much of a real estate lawyer’s work involves drafting deeds, agreements and title opinions for residential and commercial lenders as well as completing deals. However, you may also need a legal professional to represent you in pursuing or defending lawsuits.
Seller Misrepresentation
Some disputes arise out of the condition of the parcels or the housing. As a buyer, you might raise claims that the seller misled you by lying about the condition of the property or by concealing defects. If the involved parcel is residential, a seller or the realtor for the seller must submit a disclosure statement that lists all the defects in the home, such as structural, plumbing and wiring. Parties may ask a court to enforce the contract. In most cases, buyers often have more defenses at their disposal than sellers. For sellers facing these lawsuits, the best defenses may include the failure of a buyer to have sufficient funding at closing or to otherwise pay the purchase price.
Imperfect Titles
Often, a real estate attorney will uncover problems in the title, such as prior conveyances, judgments or, in the case of a corporate owner, the lack of sufficient proof that the officer or director had the authority to enter into the transaction. Unless the seller can address these and other details, the buyer can escape the obligation to complete the deal.
Trespassing
Aside from contract disputes, you may find yourself in a trespassing case. A trespassing charge is usually a misdemeanor, but can also be a felony depending on where. In less serious cases, it can be reduced to an infraction and no criminal conviction will appear on your record. If the property was damaged as a result of the trespassing, the victim may be able to recover money for this loss.
Landlocked Property
You may need relief from being landlocked — that is, not having adequate access to a public road. A law firm in your area with attorneys who specialize in easement cases may pursue implied easement claims. Such rights arise, not by an express grant, but from prior use of a road or driveway across the adjoining parcels when they were a single unit or when you can demonstrate that you or prior owners used the road under a claim of entitlement for a specific period of time.
Property Line Disputes
If you’re in a boundary dispute, a law firm experienced in such matters can engage experts such as surveyors to help you locate the boundaries. Knowing the location of your lines matters not only in avoiding encroachments, but in not running afoul of restrictive covenants or zoning rules that require buildings to remain a given distance from adjoining tracts or a road.
How Do I Find an Affordable Real Estate Lawyer?
Real estate law is a fairly document-intensive and time-sensitive field. Claims depend upon words in documents, whether parties sign documents, and who can first reach the courthouse or register of deeds office. Finding a highly-experienced legal professional can help you make sense of where you stand when it comes to real estate transactions and controversies. But how do you find the right one?
Get Recommendations, Read Reviews
When looking for a top rated real estate lawyer, start by asking for recommendations from family, friends and co-workers. Also, go online and search websites that offer honest reviews about real estate attorneys in your local area. Read about their experience, understand their ratings, and learn the types of transactions in which they have been involved. With a few clicks on the law firm’s website, you can see if they specialize in representing one side, such as a landlords, tenants, buyers or sellers. The more relevant the lawyer’s experience is to your particular case, the higher the chance they will be successful. It may also be beneficial to find out whether they appear on the approved list for lenders during title searches. Lenders usually have an approved list of attorneys to perform title searches so that the their mortgage interests are protected.
Hire Someone Local
It is also beneficial to hire a real estate lawyer who is familiar with your local area. Such a lawyer can readily contact the brokers and lenders to facilitate transactions. In fact, the lawyer may have already performed a title search on property that you’re purchasing or that is the subject of a court proceeding.
Schedule Free Consultations, Ask Questions
Whether you need representation in a trial or just simple advice, a free consultation can supply you with information on how to best protect your interests. Such a meeting may cover the cost of moving forward with a lawsuit or defending one, which includes the rates to be charged by the lawyer.
