Purchasing and selling a residence or a commercial piece of property is one of the most important personal and financial commitments an individual or business can make. Real estate laws protect parties to real estate transactions, including:
- Buyers;
- Sellers;
- Land owners;
- Contractors;
- Real estate agents; and
- Builders.
During the real estate transaction, it is essential that the purchase and sale documents be well-written in order to avoid future problems and delays. Disputes and litigation may arise if the parties to a transaction have a dispute.
Litigation related to real estate may involve:
- Zoning;
- Construction defect;
- Homeowners associations; or
- Boundary disputes.
Common real estate and property law disputes include, but are not limited to:
In addition, real estate and property law governs the financial aspects of real property, including:
There are also certain wills and trust issues which may fall under the umbrella of real estate and property law.
What Are Some Tips to Know About Buying or Selling Property?
If they desire to do so, an individual is permitted to purchase or sell a residence on their own. These transactions, however, are typically executed with the assistance of an experienced broker or agent.
Having the assistance of a broker can often make the sale of a home much easier. However, it also requires entering into a contract and paying a commission.
If an individual sells their property with the help of an agent, a real estate attorney can review the contract with the agent prior to signing. An attorney will also be able to provide important information regarding issues which are related to the sale and purchase of property, including:
There are also residences which may be located in common interest communities. These types of communities are usually:
- Constructed by one developer;
- Have a governing body or association; and
- Have specific rules regarding the use of the property.
There are certain topics which individuals may not be aware of that can be helpful to know about when purchasing or selling a property. The duty to disclose requires the parties to share any property defects that they are aware of, which refers to issues like structural or electrical.
This duty is also known as the disclosure of material defects or simply, disclosure. It is also important to be aware that there are buyer’s duties which may apply to the transaction.
Typically, the potential buyer of a property has the right to inspect that property before closing to discover any potential defects or zoning issues. A potential buyer should also check to see if there are any mortgages or liens already on the property, which can be found at the local county recorder’s office.
What Can I Do if I Have a Conflict with a Residential Real Estate Sale?
In order for an individual to purchase a home, they will be required to complete a real estate residential sale. Depending on the laws of the state where the transaction is occurring, there may be different requirements and steps to follow when completing the residential real estate sale.
In general, both the purchaser and the seller have real estate agents who represent them in the sale. There are some states which also require each party to be represented by an attorney.
Prior to purchasing a home, an individual should be aware of common disputes which may arise during the process.
What are Some Common Residential Real Estate Disputes I May Encounter?
During the real estate sale process, an individual may encounter issues which may cause a delay with the sale. Situations which an individual may encounter which may cause disputes between the purchaser and the seller include:
- Disclosure issues;
- Discrimination against a buyer;
- Appraisal disputes; and
- Fraud.
A property owner is required to make certain disclosures regarding the condition of the property they are selling. If an issue is discovered which has not been disclosed both during or after the sale, the buyer may be able to take legal action against the seller.
Brokers, mortgage companies, and various other agents involved in real estate transactions are prohibited from discriminating against potential buyers based on attributes such as their race, age, and sex. If an individual thinks they have been discriminated against, they may be able to take legal action.
In some cases, a dispute will arise regarding the value of the house. If this happens, a professional may need to be consulted to determine the true market value of the property, called an appraisal.
Unfortunately, an individual may also face a situation where an appraiser fraudulently reports the value of a home. However, it is not likely for this to occur.
Sales may also be delayed due to several types of fraud. This may include document fraud or mortgage fraud.
How are Residential Real Estate Conflicts Resolved?
If an issue arises with a residential real estate sale, an individual may be able to take legal action in order to resolve the dispute and complete the sale. The real estate contract will outline the terms of the sale and will govern many issues which may arise.
Typically, the contract will contain provisions which dictate how disputes will be resolved. Common ways in which a dispute may be handled include:
- Further negotiation, which may include offering a credit or another incentive to complete the sale;
- Arbitration;
- Mediation; or
- Filing a civil lawsuit.
It is important to note that determining damages in these types of cases may be very complex. If, however, an individual takes legal action, remedies which may be available include:
- Injunctions, which require a party to cease an action or to engage in an action;
- Mediation or arbitration, which involves a neutral third party helping to facilitate discussions and resolutions between the parties;
- Various fines or fees, which are common for city or state zoning or land use violations;
- Restructuring of a contract or loan agreement to better accommodate the parties involved;
- Specific performance, which requires that one party perform their agreed to contract duties; or
- Judicial sale of the property, or a judicial lien on the property.
A real estate dispute is often resolved by a damages award which compensates the non-liable party for losses that resulted from the dispute. The available means of dispute resolution will depend upon the type of conflict which is involved.
For example, in a breach of contract claim, the plaintiff may choose between a monetary damages award or a specific performance award. In addition, state laws may influence which remedies are available based upon the specific dispute.
In many cases, a monetary damages award may not be practical to resolve a real estate lawsuit. For example, it would likely be difficult to convince a party to pay their missed mortgage payments, especially if they missed the payments because they have already exhausted their available funds.
An alternative legal remedy may be more practical, such as the forced sale of the property with the proceeds going to the lender.
Do I Need to Contact an Attorney?
If you do not have the assistance of an attorney already with the sale of your home and an issue arises, it is important to consult with a property attorney. Your attorney can advise you regarding the laws of your state which apply to your transaction, advise you whether legal action may resolve the issue, and represent you in court if you decide to file a lawsuit.
