Real Property
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Real Estate is typically transferred from person to person through the use of a document called a Deed.
Deeds are predominantly used because real estate is immobile, and cannot be transferred or carried like most other assets. Deeds simplify the buying, selling, and trading of real estate as they can easily be moved, stored in a safe or other secure location, or sent electronically, and additionally serve as a record of any transactions in which the property is involved.
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Real estate and land, however, are often such high-value assets that there is always a concern that a deed may be forged to attempt an illicit transaction. To allay this concern and track legitimate ownership, all deeds and transactions are recorded in the local County Recorder's office. This system creates an independent, redundant public record of the deed, which allows any potential buyers to research the property and investigate whether or not the seller officially owns the property.
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Typically, this process is accomplished by enlisting the help of a Title Company, who will look up the public record and report back on the current owner and any relevant details. This effort is called a Title Search. Relevant information for the purchase of a property may include details such as creditor liens, tax liens, easements, or property awards in a divorce settlement. All such details can be recorded on a property deed, and each will have a unique effect upon how the property may be transferred or sold.
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In order to ensure that a property's public record (Chain of Title) remains clear and correct, it is essential to draft an accurate initial deed. Once the form and the structure of the deed have been decided upon, it is necessary to ensure that the proper names of the parties, the correct legal description of the property, and any relevant interests are recorded in detail.
FOR SALE BY OWNER
A person who is selling their home without a Real Estate Agent typically knows more about the process and has more power than the Buyer.
An attorney who can advise the Buyer on the sale, typically hired for a flat fee, can be significantly less expensive than the percentage-of-sale fees that a Real Estate Agent charges. If the Seller is also interested in financing the Buyer, the assistance of an attorney is an absolute necessity. Financing is a form of legal contract, and it may have several pitfalls that the Buyer needs to be advised upon before making any form of commitment.
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When selling a property, there are three methods of sale: Lease with an Option to Buy, Contract of Sale, and Deed to Buyer secured by a Promissory Note and Trust Deed (Mortgage). Each distinct method of sale depends upon multiple factors, any of which may shift the risk of the purchase to either the Seller or the Buyer. One of the most notable factors is whether or not the Buyer is financially capable of making a sufficient down payment on the property.
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In a "For Sale By Owner" transaction, the Buyer (who may be accustomed to having many of the costs of sale taken out of their mortgage) should always consider contracting an independent inspection of the property, for quality purposes. A Seller who is familiar with the property may have suspicions about potential problems with the structure, but may also avoid investigation into these suspicions to ensure that they do not become documented problems (which would legally have to be disclosed by the Seller in the sale documents). "For Sale By Owner" transactions can be economical for both the Buyer and the Seller, but they should still be treated as any other significant purchase and investigated (and documented) properly.
HOA DISPUTES
A Homeowner's Association, or HOA, is essentially an organization of property owners who oversee the management of the common property.
Many people become surprised, however, when they are assessed persistent HOA fees or learn that the HOA is attempting to prevent them from changing some aspect of their home that normally would not become an issue.
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Disputes with an HOA can balloon into a significant problem quickly, because you are forced to continue to deal with the HOA and its regulations governing your property. Governance over HOAs can vary widely in both personality and sophistication, either of which can change the atmosphere of relations and means of addressing potential conflicts. It is best to review your HOA contract in detail at the outset so that you know what regulations you will be bound by, but if you end up caught in a fight with your HOA, consulting a lawyer about your HOA terms and your rights to dispute them.
RENTAL PROPERTY LIABILITIES
Disputes often arise between landlords and tenants when either one or both parties are unsatisfied with the other.
Renters are particularly vulnerable when they feel that their personal home is being violated. Both landlords and renters may have very strong feelings about the property. Landlords themselves don’t have many tools to resolve a situation, other than demanding rent and resorting to eviction, which can feel like it escalates a situation very quickly. Although there are ways of resolving these issues on your own, retaining legal advice can save you the headache, and in some cases, save you some money too. Talk with and attorney today about how to get your rental relationship off to a good start or how to proceed when things are breaking down.
COMMERCIAL LEASES
The first thing that is important to look at regarding a rental of commercial space is to ensure that the space does not have any restrictions which might exclude your business from operating there.
Sometimes certain commercial-use areas are subject to land-use zoning laws that your landlord (or the current owner of the space) may overlook or not be aware of at all.
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Once you are settled on a space from which to operate your business, other considerations may come into play. If you are actively investing in a space or building additions or improvements for the use of your business, there is a likelihood that you are also adding to the property value as you do so. It is important to have discussions with the property owner regarding added value, because you should negotiate to receive credit in your rent payments for any value that you have contributed to the space. It is also important to note that if your relationship with your landlord sours, or if your new business falls upon hard times and you are unable to pay the rent, you may not be able to take any improvements you have made with you when you leave.
Negotiating the set-up of a commercial lease that both benefits your growing business and allows your landlord to contribute to its growth. The best commercial contracts can feel more like partnerships than rentals.
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Unfortunately, most commercial contracts are about the bottom line, and it is possible that your landlord may attempt to leverage certain angles against you. An example of this is when your business becomes established, and your customers know and associate it with its current address. There is always a chance that your landlord will look at this as an opportunity to increase the rent when it is time to renew the contract. A good commercial lease is one that enables both you and your landlord to work up front with one another, and should prevent future disputes. A Commercial Leasing attorney can assist you in developing contract terms that are mutually-beneficial, while also protecting against negative contingencies in the future.
CONSTRUCTION DISPUTES
The tried-and-true method for preventing disputes on construction projects is to have a solid contract with your general contractor or subcontractor.
It is essential to document the progress of the project at pre-defined intervals, and also to be able to provide proof of payments: a steady stream of invoices and payments that build confidence on both sides of the project. It is important to remember that the construction process can be so complex and costly that if a dispute arises, it is often difficult to prove your case without proper, detailed documentation.
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The Oregon Contractor's Board (OCB) has many self-help resources available, such as instruction on liens, dispute-resolution mediators, and construction bonds. These tools can be helpful in resolving disputes...however, without a clearly-documented contract, they are often much less effective than they could be. Additionally, applying a lien or pursuing a contractor bond may require several complicated steps when trying to collect.
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In the event that a person tries to collect on a contractor bond and is unsuccessful, it becomes necessary to file a direct complaint with the OCB and to begin litigation in a court case. If you have already done the work and not been paid, the cost of litigation to get paid will seem like an insult to your injury. The best defense against these situations is to review your construction contracts with an attorney at the earliest stages possible.
INTERNATIONAL PROPERTY
The United States has many laws in place that protect personal property, but the same cannot always be said of other countries in the world.
Holding, transferring, and insuring property against business risks are actions which may be subject to different laws, depending upon the country in question. While the low cost of real estate outside of the US may incentivize its purchase, the development of property or the inclusion of a foreign property in your estate plan may run afoul of international law. When considering any such actions, it is always advisable to consult an attorney about the methods of protecting your interests beyond US borders.