Real Estate Property Law
Orlando Real Estate Attorney
Are you involved, or need to be involved in a real estate transaction? Do you need a real estate attorney or a real estate broker?
Property law is a vast field of law related to the buying, using and selling of real property. Much property law is related to assessing the rights between landlords and tenants, between owners and mortgage holders and between people and governments. However, another major area of property law deals with injuries that occur on property. And, another major area of property law focuses on developing real estate and investing in property. Because this area of law is so diverse, often people need to speak with a lawyer skilled in a particular aspect of property law, as opposed to a general property lawyer.
Real Estate Brokers: A broker is a person who helps you buy or sell your home. Both a buyer and seller of residential real estate can benefit from a broker. For example:
- Many brokers are members of a multiple listing service (MLS)
- Brokers subscribing to a MLS share their exclusive listing agreements with other broker in order to expose your home to more sellers.
- Brokers work for you! The broker you hire is your agent. This means that the broker owes you duties, such as loyalty, care, and diligence.
- Brokers are professionals. Brokers are required to be licensed and are thus educated and trained to help you sell or buy your home.
A listing agreement is a contract between you and the broker that creates the obligations and rights of the relationship. It is wise to consult with an property law attorney or a real estate attorney before signing any legal document or contract.
The listing agreement usually provides:
- Material defects within the seller's knowledge - Many states require a seller who knows of a problem with the property to disclose the presence of this problem to the buyer.
- Actively conceal material defects - Generally, a seller cannot actively hide a defect in order to attract a buyer to the property.
- Buyer's Duty to Inspect - Most states find that the seller does not have an obligation to inspect the property before the deed is transferred. Thus, the buyer should hire someone to inspect the property for any defects that are not easily noticeable.
- Inspection Contingency - The buyer can place a clause in the purchase contract stating that the sale is contingent on a property inspection by a qualified engineer or construction expert at the buyer's expense.
Encumbrances on the Property
An encumbrance is something that may prevent a buyer from taking the legal title or possession of the property. Most encumbrances are recorded at the county recorder's office.
Sometimes a piece of property can be sold subject to a mortgage or other financial lien. A buyer can check whether a piece of property has a lien or mortgage through the county recorder's office. Additionally, a title insurance company should inform you of any such encumbrances on the property.
A buyer may not have enough cash up front to pay the entire purchase price for a piece of property. A financial institution may be able to lend the buyer the purchase money and attach a mortgage to the property.
Do I Need a Real Estate Attorney if I Want to Buy or Sell a House?
A real estate attorney can guide you through the process, and help you negotiate a price that is right for you. A real estate attorney will also review listing agreements with brokers, offers, and purchase contracts before you sign them to make certain that your requests are met. Further, a real estate attorney can advise you on financing the house of your dreams.
Title and boundary disputes involve disagreements about who owns a piece of property, and the amount of area the property covers. Title and boundary disputes are becoming less common as better records are kept and property lines are more clearly defined. However, title and boundary disputes still arise, especially when title and boundary lines were recorded a long time ago.
Finding my Property's Boundary Lines
The property description in your deed includes the boundary lines of your property. Deeds to property are recorded at the county or city recorder's office. The recorder's office should have information on all the prior owners of your land and where the boundaries used to lie.
Many people own subdivision parcels. In a subdivision, the initial developer created a map, called a plat map, dividing the large parcel she owned into many small parcels. You can check the subdivision's plat map for a description of your boundaries.
What Does it Mean to Have "Title"?
Having title to a piece of property generally means that a person actually owns the property described on the deed. Title usually refers to an owner's rights.
Recorded title is also important. When an individual sells or buys a piece of property, he or she is usually required under state law to record this event at the county or city recorder's office. The recorded title will also note any "clouds on title" or "encumbrances" such as liens, mortgages, easements or other things that may affect ownership rights.
Essentially title insurance is a guarantee of a thorough search of the public records of your deed to make sure no one else has an interest in the property. The title insurance company will defend your title if there is a "cloud" or another interest recorded on your title that they did not find.
An easement is the right of another person to use your land for a specific reason. You can grant someone an easement through a document, like a deed. Easements affecting your land that have been expressly granted are recorded in the county recorder's office.
If your neighbor has been using a portion of land that is within your boundary lines for a certain period of time, he may have a prescriptive easement. Even though you did not expressly grant him the right to use your property, he may have developed a right if he used it long enough. Each state requires that the neighbor use the land for a specific period of time. A prescriptive easement is not always recorded at the county recorder's office.
Do I Need a Real Estate Attorney for my Title or Boundary Line Dispute?
- Title and boundaries are very essential issues, which may affect your rights as a property owner. A real estate attorney can help you determine the extent of your rights to your property. Additionally, a real estate attorney can help you defend any attack on your boundary rights and your title to your property.
What Is an Agreed Boundary?
- Many property owners have a difficult time determining the boundary line between their property and an adjacent property. Often, neighbors will agree on a property line even though it may not be the true property line. This can lead to many problems because of inconsistencies at a later date.
Will an Agreed Boundary Line be Legally Binding?
- It is possible for neighbors to have their agreed boundary made legally binding under certain circumstances. This agreement will be enforceable even if a surveyor later determines the true boundary line. However, the agreed boundary line must have been effective because of confusion or uncertainty as to the true boundary line.
What are the Elements of an Agreed Boundary Doctrine?
- There are various elements that are necessary for an agreed boundary line. These elements include:
- Uncertainty as to the true boundary line
- Landowners must agree on the boundary line
- Owners must affirm and act as though the new boundary line is the true boundary line
- Owners should identity the new boundary line. This can usually be accomplished by erecting a fence or some other identification
- If one of these elements is not met the agreed boundary line might not be legally enforceable.
Is the Agreed Boundary Enforceable against Future Parties?
- The agreed boundary doctrine binds future parties to the new boundary. There may be no property records in effect but the agreed boundary doctrine of parties will bind future owners. This occurs frequently when the agreed boundary line has been in effect for many years with the previous owners.
Do I Need a Lawyer to Make a Boundary Line Agreement?
- The law regarding agreed boundary doctrines can be difficult. An experienced Orlando real property attorney can help property owners to put their agreements in writing to make sure no inconsistencies or disagreements occur. A real property lawyer can also check the relevant state laws in your area to determine what steps are necessary to finalize an agreed boundary line.
What is Acquiescence to a Boundary Line?
- Acquiescence is a legal concept that determines the boundary line between two properties and overrules the boundary listed in the deeds. If the law of acquiescence applies, one property owner loses title to some amount of land and the other property owner gains it.
When Does the Law of Acquiescence Apply?
- The law of acquiescence is concerned with adjoining property owners, both of whom are mistaken about where the line between their property is. Adjoining property owners may treat a boundary line, often a fence, as the property line incorrectly. If the law of acquiescence applies, then one property owner will lose all legal title to some amount of land. This is similar to the doctrine of adverse possession, however there is no requirement that the actions be hostile, instead it is based on a mutual mistake. In most states, the law of acquiescence can apply in three situations:
- Dispute and agreement - If the property owners have a dispute about where the boundary is and come to an agreement to settle the dispute, this agreed upon boundary line becomes the legal boundary, no matter what is listed in the deeds.
- Acquiescence for a statutory period - If one landowner treats a line as the dividing line between the property for the amount of time required by statute without objection from the neighbor, this line will become the legal boundary. The statutory period is usually quite long, often 15 years.
- Intention to deed to boundary line - This situation arises when a property owner intends to deed the property with the boundary line but mistakenly uses an incorrect description. In this case, the acquiescence to the intended boundary will fix the mistake.
Do I Need a Real Property Lawyer?
- It can sometimes be difficult to determine where the boundary is between two pieces of property. If you have any doubt about the boundary to your property, you should speak to a lawyer to avoid losing title to land that is legally yours. A lawyer can advise you of your options as a property owner and represent you in court.
Contact our Property Law Attorneys
If you need assistance with any property law related matter, contact an Orlando property la lawyer from NeJame Law at your earliest convenience. Our real estate attorneys handle cases in Orlando, Central Florida and throughout the State of Florida. We can be reached at (407) 245-1232, by e-mail us at Civil@NeJameLaw.com and by filling out our online form.