Real Estate & Landlord-Tenant
The Attorneys at the Thyne Taylor Fox Howard, LLP have decades of experience in both commercial and residential real estate matters. Attorney/Partner John J. Thyne III is also an active real estate broker in California.
A deed is a legal instrument that transfers some property right in real estate. Deeds in their most basic form contain:
- A description of the real estate involved
- The names of the respective parties
- The signature of the person transferring the real estate
What are the basic types of property deeds? Here are the most common types of property deeds and how they are typically used:
- Warranty deed: a warranty deed transfers ownership and provides additional promises, including that the transferring party has good title (in other words, the property is free of liens and claims of ownership). If the promises made turn out to be untrue, the transferring party agrees to compensate the buyer.
- Grant deed: a grant deed transfers ownership and traditionally promises that the property hasn’t already been transferred to someone else.
- Quit claim deed: a quitclaim deed transfers whatever ownership rights that the transferring party may have on the property. Quitclaim deeds are useful for transferring rights when it’s unclear exactly what those rights are.
Three Ways to Buying real estate jointly with someone. There are generally three ways to take property jointly with someone, and the effect of the choice can be significant. In whichever form of deed you use, you should specify how the property is being taken. Here are the three most common:
- Tenants in common: if you take property as tenants in common, you can take unequal shares of the property and you can define who your property interest goes to when you die.
- Joint tenants: if you take property as joint tenants, you must take the property in equal shares, and your share will automatically pass to the other co-owners upon your death. Because the share automatically passes, you do not need to dispose of this property right in your will.
- Tenants by the entirety: tenants by the entirety is also referred to as community property. Tenants by the entirety is a form of spousal property, where each spouse owns the whole property and cannot transfer his or her right to the whole property without the consent of the other tenant.
Do property deeds need to be notarized, filed and witnessed? Almost all states require that a deed be notarized and filed, and some states require that it also be witnessed. First, the transferring party should go to a notary, who will notarize and witness the signature. Next, the transferring party should record the deed by filing it with the land records office in the county where the property is located (also commonly called a country recorder, land registry or register of deeds). The office will keep a copy and return the original to the transferring party. What are trust deeds and contracts for deeds? There are two common “deeds” that aren’t really deeds at all because they don’t transfer property:
- Trust deed: a trust deed (or deed of trust) is really a mortgage that transfers title to land to a trustee who holds the land as security for a loan. When the loan is paid off, the title is transferred back to the borrower.
- Contract for deed: a contract for deed is really a contract and grants one party title to property until the other party pays off his or her loans, upon which title is transferred back to the original borrower.
Quiet titles are legal mechanisms that make it possible to grant a clear title to a single owner when there is the potential for several different claims to ownership. The name of the action refers to the result of this action, in that by establishing a clear owner to the real property, it is possible to “quiet” all other claims. A quiet title action effectively puts to rest any claims that may result from unclear transfers of the property that took place in times past. In order to obtain a quiet title, the claimant must request a decree from the local court of jurisdiction. As part of the process, the claimant must be able to present what the court would consider a legitimate claim to the property. For example, the claimant may be able to document that the property in question is current occupied by the claimant. Further, the claimant would need to prove that he or she had taken possession of the property in good faith, and had no idea there were other potential claimants to ownership. If the court deems the claim to meet the standards set by the local jurisdiction, the claimant is granted what is known as an action to quiet title. This decree essentially is a formal announcement that the court recognizes the claim and believes it supersedes any other possible claims against the property. This is true even in cases where missing heirs, liens established under prior ownership, or remainders come to light at a later date. Unless compelling evidence arises at a later date, the claimant granted the quiet title is recognized as the legal and proper owner of the property. One common reason for seeking an action to quick title is to clear up any possible lingering problems associated with property conveyed with the use of a quitclaim deed. A quitclaim deed basically ensures that the previous owner relinquishes all claims to the property, but does not necessarily pledge that the title is completely clear. Since the quitclaim deed does leave the door open for other former owners to claim an interest in the property, some means of protecting the interests of the current owner is necessary. That is where the quiet title comes in. When property is purchased with the use of a quitclaim deed, the new owner usually moves forward with requesting a quiet title as soon as possible. Doing so provides the security of ownership that a quitclaim deed cannot provide. Once the quiet title is granted, the owner can be reasonably sure that the title is considered good and can proceed to make use of the property in any manner allowed by current laws.
Foreclosure is the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months (time varies from state to state), the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to “cure” the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee in states using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure (or even afterwards in some states) the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and “redeem” the property.
Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale. This is used in several states with the mortgage system or in deed of trust states when it appears that the amount due is greater than the equity value of the real property, and the lender wishes to get a deficiency judgment for the amount still due after sale. This is not necessary in those states which give deficiency judgments without filing a lawsuit when the foreclosure is upon the mortgage or deed of trust. We work to ensure that our Clients receive the best legal advice available to guarantee that our Clients make informed decisions as it relates to their rights and obligations in mortgage and other credit related transactions. Lenders often charge phony fees, excessively high interest rates and tend to ignore the Federal and State Laws that exist to safeguard Borrowers. So entrenched is the Lender’s disregard for the law, most Borrowers actually believe that it is just part of the process. Borrowers have rights and it is our commitment to each of our Clients to expertly fight for and educate our Clients and the public about those rights.
Sale, Transfer or Conveyance
Real estate issues can be complex, especially with multi-page contracts, written in a dense terminology, full of unfamiliar words. Our firm helps individuals and businesses deal with the complexity involved in real estate transactions and contracts. With the experience of handling numerous real estate issues throughout our many years of practice, we take the time to ensure our clients understand the documents they are signing.
Commercial Real Estate
Commercial real estate transactions typically involve numerous stakeholders, and all parties want to see the transaction through to successful completion. We are here to facilitate that process from start to finish. We lay the proper contractual foundation, drafting documents that are clear, precise and understandable. We provide comprehensive and knowledgeable advice through the finalization of the transaction. Finally, we provide aggressive and smart representation should disputes arise at any point in the process. We handle a wide range commercial real estate matters, including:
- Negotiation and preparation of commercial leases, and the resolution of disputes including lease violations, holdovers and non-payment of rent.
- Negotiation, review and preparation of all documents necessary to sale of land or property, including buy-sell agreements, deeds, notes, financing instruments, easements and restrictive covenants.
- Guidance on financing-related issues of a purchase or sale.
- Negotiation of terms and the preparation of documents for construction or permanent loans.
- Commercial loan restructuring for lenders or borrowers.
- Negotiation, review and preparation of commercial construction contracts and representation in disputes involving construction defects, warranty issues, breach of contract or controversies with neighboring properties.
- Negotiation of commercial real estate broker agreements.
- Counsel on the environmental law and compliance issues related to commercial real estate transactions.
Residential Real Estate
Our firm offers experienced, dedicated and comprehensive representation in a wide range Residential Real Estate matters, including:
- Residential real estate sales and closings.
- For sale by owner (FSBO) transactions.
- Draft purchase agreements, titles, deeds, and other real estate documents and contracts.
- Financing and mortgage issues.
- Contract for deed transactions.
Title opinion is a written statement from an attorney which describes the quality of title to a property. It gives an analysis of the title search regarding the current ownership rights in the property. It states whether there is any kind of lien or cloud in the title to the property.
Purpose of the Title Opinion: The title opinion describes the property, provides the names of the owners and any exception that the attorney has discovered to the title. Such exceptions include recorded building restrictions, servitudes, and building set-back lines. The opinion is issued on the basis of the information provided in the public records of the parish in which the property is situated. A Title Opinion states whether a property has any mortgage or lien against it. But if the attorney says that, there is no such lien and it happens that there is such a defect in the title, then he has to fix up the problem. The attorney then has to get rid of the problem at his expenses. He may even have to pay off the mortgage or judgment. Thus, title opinion is a low-cost insurance policy that lasts for as long as the attorney is legally responsible to resolve any problem he overlooked. The obligation is limited to the time frame that an attorney can be sued for malpractice.
Real Estate Closings
Closing involves a series of complex phases: examination of the title, completion and explanation of legal documents, and resolution of any possible title difficulties. As your Real estate closing attorney we conduct each of these steps. First, we examine the title records for prior conveyances, unpaid mortgages, liens, judgments, easements, and other encumbrances and clouds on title. We verify that the seller has the authority to convey a good title to the property and that no errors exist in the deeds in the chain of title. We can negotiate with the title insurance company for insurance coverage to insure titles against any adverse claims of ownership, liens, and easements. As your Closing attorney we combine all relevant information into one set of closing documents. At the closing, we can provide detailed explanations of the documents to insure that the parties understand all issues involved in the transaction. Such matters include: the relevant contracts of sale, obligations of contracts, ordering of the title searches, their analysis of title searches, significance of the title search, quality of title, extent of risks, probability of damage, obligation to close or not to close, process of closing itself, and documents there exchanged. They we can disburse funds, record relevant documents as public records, and prepare title insurance policies for the purchaser and lender.
Real Estate Development
We advise clients on many types of real estate development projects including office buildings, condominiums, condominium conversions, new construction projects, shopping centers, residences, and hotels.
Real Estate Mortgage
Our firm handles disputes between mortgage and tax authorities and between mortgage holders. We also handle invalid or improperly filed mortgages (sometimes referred to as perfection problems).
Real Estate Leins
Real estate lien notes can come in the form of a judgment filed due to unpaid debt, IRS tax liens, property tax liens as well as mechanic’s liens. All of these liens will place a liability on the property that requires these debts be settled prior to the property being sold, or can accelerate a foreclosure on the property depending on the amount owed.
Real Estate Leases
Whether you are the lessor or the lessee, to us you are simply “the most important person at the table.” We will work tirelessly to protect and advance your rights in crafting the lease terms and binding the other party or parties to them with customized contract language that best suits your interests. We will see the matter through to a closing and protect your rights and provide guidance and assistance every step of the way.
Landlord / Tenant Disputes
Tenants’ Rights Every tenant, no matter where they live, has the right to a livable dwelling. The landlord has a duty to provide for the upkeep and maintenance of his or her property, and if this duty is not upheld, the tenant may have a right to legal recourse. In addition, if you’ve been denied housing or unfairly treated because of unlawful discrimination, we can aggressively argue your case.
Landlord Rights The landlord, too, has certain rights which must be respected. Laws and procedures dating back centuries protect a landlord’s right to be paid in full for allowing tenants to reside on the property. Unpaid rent can be cause for eviction; however, some holdover tenants may require more severe action such as lockouts and seizure of personal property. Our clients receive individualized attention from their attorney, not an assistant or paralegal. Our lawyers will listen closely to your circumstances to make sure that no potential strategy is overlooked, and we will do whatever is necessary to bring your case to resolution.
Real Estate Brokers and Realtors
In most people’s minds, “Realtor®” and “real estate agent” are interchangeable terms. The truth, however, is quite different, and the distinctions are important to both real estate professionals and the buyers and sellers they represent.
Real Estate Agent Defined In the strictest sense, a real estate agent is the intermediary between a buyer and seller. They assist buyers and sellers throughout the transaction process, helping buyers to find a home and sellers to market their homes. The job of a real estate agent also includes:
- Handling contracts and paperwork
- Consulting and advising their clients
- Previewing homes
- Arranging the home appraisal and home inspection
- Acting as a point of contact between their clients and other parties involved in the transaction.
A real estate agent does differ from a real estate salesperson. Different licensing requirements and different education and coursework are required for an agent (versus a salesperson). In some jurisdictions, though, an attorney can serve the same functions as a real estate agent in a transaction, with no licensing required.
Realtors® Defined A Realtor® performs all the same duties in a transaction that a real estate agent does, and has the same licensing requirements and education. A Realtor®, however, is a member of the National Association of Realtors®which is designed to help maintain a code of standards industry-wide.
Real Estate Broker Defined Broker is another term that gets tossed around and can further confuse those not familiar with real estate practices. Like many other things in real estate, the exact role of brokers can vary. Most often the label “broker” is reserved for those who can legally practice real estate on their own independently and also those that oversee the work of other agents within a real estate brokerage. The distinction here is that in many states agents can’t practice real estate unless it’s under the supervision of a broker who will take responsibility for their work. Brokers themselves are also considered real estate agents because they must be licensed and due to the definition of agency. Technically when dealing with a broker and their agent, the real estate agent is an agent to the broker they are working under and the broker is the agent of the seller and buyer. To become a broker an agent must have practiced real estate for a certain number of years, though some states don’t require such experience under special circumstances. In addition broker candidates are also required to complete additional coursework and pass the broker exam for their state.
Nothing can disrupt the enjoyment of your home than a dispute with your neighbor. Not only are such disputes bothersome and frustrating, but a dispute can lower the resale value of your home. The following are issues that typically arise in a boundary dispute situation:
Fences Boundary fences are used to be able to define the boundaries of a particular property often times by both neighbors. However, even though boundary fences exist on private property, they are still subject to regulation by state and local ordinances concerning fence height, construction and maintenance.
Trees Trees that exist on your property are your property and not your neighbor’s property. It is important to be able to provide documented information about the ownership of the tree and its place within the boundaries of a piece of property, in order to provide viable proof of ownership in the event of legal action. If a tree is on a boundary or defines a boundary it is important for an agreement to be met between neighbors concerning the tree.
Boundaries Surveyors can provide exact information about boundaries. Most surveying jobs cost anywhere from $500 to $2,000, or more, depending on the size and location of the property. Agreements can be established between neighbors if paying a surveyor is not an option. This type of situation would entail signing a deed or a legal document. If a neighbor begins to use your property it is important to speak up promptly otherwise it might affect the overall value of your property.