A Man's Home Is His Castle
As the saying goes, “A man’s home is his castle.” For most people, their home is their largest asset. It is important to protect your home. Not only is Shaw Clifford a licensed attorney; he is also a licensed real estate agent. This gives him a unique perspective on the issues that homeowners face when legal issues arise. If you are dealing with issues involving boundary disputes, construction defects, undisclosed issues with a recently purchased home, or HOA/lien issues, contact the Law Office of Shaw Clifford today.
Signed, Sealed, and Delivered
Normally, people hire a real estate agent to sell property. However, there may be times when it is necessary to consult an attorney. As both a licensed attorney and real estate agent, Shaw Clifford can guide you on the best path to sell your property in the most cost-effective manner. Contact Shaw today to discuss your real estate options
Real Estate Law FAQ's
Title insurance provides valuable protection for property buyers. Like all forms of insurance, however, it does not cover every conceivable problem and it is important to understand its limitations. Title insurance is based on examination of the county real estate records and generally will not cover problems arising from facts outside of the recorded chain of title.
One common problem not covered by title insurance is boundary line issues, which would be revealed by a survey of the property (for example, it turns out that your fence is actually two feet onto your neighbor’s property). Unrecorded mechanics’ liens and unpaid public utility bills are other examples.
The title insurance policy will describe many of the situations it does not cover; these same limitations will generally be found in an attorney’s title examination. A qualified real property attorney can assist in helping a buyer understand the limits of a title policy and can take care of issues not covered by the policy.
A lien is any legal claim on real property that acts as a security for the payment of a debt or other obligation. If the debt is not repaid as promised, the lender or the lien holder can foreclose its claim on the property and force a public sale to pay the debt. The most common form of a lien on a property is a mortgage. While all mortgages are liens, not all liens are mortgages.
Other types of liens are commonly encountered and part of the work of the real property attorney is to check for outstanding liens at the time a real estate transaction closes. These include such things as judgment liens resulting from a court judgment against the owners, mechanic’s liens resulting from recent improvements to the property, liens for unpaid taxes, and liens for unpaid municipal utilities such as water and sewer. Often, if a seller is divorced, the divorce decree will provide the ex-spouse with a lien on the couple’s property to be paid at the time of sale.
The concept of actual title to a particular piece of property refers to who actually owns it. In real estate law, however, title examiners and title insurance companies are governed by the concept of record title. The basic principle behind various statutes allowing the recording of deeds and other instruments of title in the county in which the property is located is that buyers and other interested parties are entitled to rely on the record of title as reflected in the county records and to make decisions based on that record.
An example will serve to illustrate this distinction. A prospective buyer has title to a piece of property examined. The examination shows an unpaid mortgage that the seller did not reveal. There are two possibilities. The first is that the mortgage is unpaid and will need to be paid if the property is to be sold. A common problem, however, is that the mortgage actually was paid in full years ago, but the owner forgot to obtain (or record) a satisfaction. The seller’s actual title is good, in the sense that the mortgage has in fact been paid and no one can foreclose on it. But the seller’s record title is not good, because the real estate records do not reflect this fact. In either case, the seller lacks a marketable title, and the situation would need to be corrected before the property can be sold.
Making sure that all appropriate steps are taken to ensure that the record title to property accurately reflects its actual ownership is one of the important services that an attorney working in the area of real property law can provide a buyer or seller.
Adverse possession is a right to use or own property that is the result of continued use and occupancy over a period of time, generally ten to twenty years depending on the state. If a non-owner of a property occupies and uses the property without the permission of the actual owner for long enough, the law will find that the actual owner has lost his or her rights in the property and ownership has transferred. Since the doctrine of adverse possession results in taking property without payment, the principle is applied very carefully by the courts and only if certain specified conditions are met. Thus, for example, the adverse use must be obvious to the real owner. And the use must be hostile, meaning that it is without the permission of the real owner. Use of another’s property with the permission of the owner will never create a right of adverse possession.
Adverse possession issues arise most often where an adjacent property owner encroaches on a neighbor, although they may also arise in other situations. For example, assume your neighbor erects a fence three feet onto your property, preventing you from using that space, and starts using the land as a garden. Obviously, as owner you would have the right to remove the fence and the garden. Or, you could sign an agreement with the neighbor allowing him to use the land with your permission for a specified period of time. But, if as owner you took no action, and the adverse use continued for the specified number of years, the neighbor could come to actually own that portion of the property. For this reason it is important when purchasing property to check for encroachments and adverse uses, and conduct a survey if there is any question as to where the property lines actually are.
The theory behind state and local zoning ordinances is that uses within a particular area should be uniform. While this system generally works well, obviously there will on occasion be the need for exceptions to the general rule. Depending on the needs of the individuals involved, and the impact on the neighborhood as a whole, it may be possible to change the zoning on a particular property by obtaining a variance. A variance is permission to depart from the requirements of a zoning ordinance in one or more particulars. Generally, a variance request is granted or denied through administrative action. Variances can be divided into area variances and use variances.
An area variance may be requested where the use is permissible but does not quite fit the property. For example, if an owner wanted to add a deck to his or her home that would violate the minimum setback requirements of the zoning regulation, or wanted to build a two-story garage, which exceeded the height requirement, an area variance would be required. By contrast, the use variance relates to a use of the property that is otherwise impermissible in the given zone. If, for example, a landowner wanted to build a grocery store in a locality zoned exclusively for residential purposes, a use variance would be required. Generally, a use variance will be harder to obtain than an area variance. The landowner requesting the variance must show undue hardship that is not self-imposed and must demonstrate that the variance would not harm the public welfare, have not an excessive impact on the general zoning plan, or would not adversely impact surrounding property values. The requirement that any hardship not be self-imposed is of particular significance. The purpose of this requirement is to prevent an owner from building a nonconforming structure and then seeking a variance for it on the grounds that it would be a hardship to tear it down.
Let Us Help You With Your Real Property Matter
Having legal counsel makes good business sense because of the complexities that come with real estate transactions. An experienced, competent real estate attorney can help to protect your interests and ensure that your process adheres to the applicable rules of your state and municipality—and that the closing occurs to the satisfaction of all involved.
Not only is Shaw Clifford a licensed attorney; he is also a licensed real estate agent. This gives him a unique perspective on the issues that homeowners face when legal issues arise. Give us a call at 281-794-3738 to discuss your real property issue.