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Common Legal Issues that Can Stop a Real Estate Deal in its Tracks

There aren’t many things more frustrating than discovering a title issue when you’re ready to close on a property. This is particularly true because title issues are accountable for some of the most common legal issues that can cause an abrupt halt to a real estate deal.

Real estate title issues come in a wide variety of shapes and sizes. Some are more serious than others, but it’s not exaggerating to say that some real estate title issues have been known to stop a real estate deal in its tracks. In fact, it’s possible for a real estate title issue to render a title basically worthless.

If you’re terrified, you can relax. Almost every real estate title issue has a solution. The solution just depends on the issues surrounding the deal and the facts related to the property and the real estate transaction. The most helpful thing you can do to minimize trouble resulting from title issues is to identify the problem as soon as possible. This is essential when attempting to resolve an issue while minimizing trouble and expense.

The prevalence of title issues is one of the many reasons people depend on real estate attorneys when buying or selling real estate. Their experience is invaluable in discovering and resolving potential issues with real estate titles. Your real estate lawyer will complete a thorough review of your title commitment and your current survey, which will reveal most potential title issues.

3 Most Common Title Issues:

Blanket Easements: Sometimes referred to as a floating easement, this is an easement, which is a right to use or cross over someone else’s property, that is not limited to a particular portion of the servient tract over which it was granted. Instead the blanket easement or floating easement encumbers the entire tract and generally creates a significant title defect because the property owner’s rights to use the property are significantly limited or prohibited by the easement holder’s rights. A blanket easement can arise unintentionally from ambiguous language and otherwise prohibit the free use of your own property.

Boundary Issues: Fairly common, boundary issues usually result from the true boundary being located in a different spot than the owner believes it to be located. In other situations, the boundary lines may change due to actions on the part of the owner (or inaction on the part of the owner). For instance, boundary lines can be changed due to adverse possession or agreements that are put in place with adjacent property owners. Unresolved boundary issues can eventually mean that the record owner is divested of title to some or all of the property in question, including improvements to the property. The most common is simply when a contractor put up a new fence and did not follow the proper boundary lines and strayed off track.

Errors or Omissions in the Chain of Title: Errors or omissions in the chain of title are frequently a result of sloppy documenting or undocumented property transfers. This type of issue arising from careless drafting include: Inaccurate or invalid legal descriptions, mistaken/misnamed parties, omitted parties, ineffective acknowledgements, unrecorded mortgages, incorrect assignments of mortgage, etc. Undocumented conveyances are usually the result of undocumented intestate transfers amongst family members or failing to open a probate estate for a landowner after they pass. The severity of chain of title issues varies greatly, but when in doubt, it is best to have an experienced real estate attorney representing your interests.

If you are considering buying or selling a property and you have questions about how to avoid common title problems and legal issues that can disrupt your closing, please get in touch with one of the experienced real estate attorneys at Aronow Law PC today.

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When Should Property Owners Consider a Partition Action?

In order to legally partition a property, you must bring a proceeding in court that forces the physical division or sale of the property and divides the proceeds of the sale between the joint owners. In some instances, it can be an absolute right of a co-owner to partition jointly held property, but in other cases it is contingent on a number of factors.

Do you plan to own property jointly? Do you already own property jointly? If so, it is absolutely necessary that you have a thorough understanding of how partition works and what your rights as a co-owner are to insist on the right of partition or fight the right of partition, depending on the case. Not being aware of the potential consequences can be disastrous.

A co-owner of jointly held property can seek a partition. There are two methods: the parties can voluntarily agree to a partition with legal assistance or a co-owner can file a partition action to get a judicial ruling on the division of property. A voluntary partition will result in significantly less litigation than a judicial partition, but the parties will still need to work with experienced New York partition action lawyers to ensure their interests are being represented during the process and that their property rights are protected during the partition negotiation process with other co-owners.

New York law states that there are two means of partitioning property: partition in kind or partition by sale. A partition in kind carves out a section of the land so each party has their own part of the physical property and an undivided interest. A partition by sale requires that the property be sold at auction. The co-owners of the property then divide the proceeds of the sale. A partition by sale is more common in the state of New York because most cases involve a piece of property that includes a structure and it would be extremely difficult to provide a physical split of a building or home.

A New York partition action must divide the premises in accordance with the type of tenancy in place when the parties involved originally took ownership. There are two main types of tenancy in New York: tenancy in common and joint tenants. Tenancy in common means that the parties can each own property with interests in accordance with their contribution to the original property purchase. Joint tenants are two or more tenants owning the property in equal shares. In some cases, joint tenants may have rights of survivorship.

When joint tenants petition for a property partition, they must divide the property equally between co-owners. When tenants in common petition for a property partition, they can divide the property in accordance with the percentage each of them contributed to the property purchase or in accordance with contractual agreements already in place regarding percentage of ownership or governing ownership.

If you have questions about property partition in New York or if you need to find out how to end a co-ownership relationship and be compensated for your share of the property, please get in touch with one of the experienced real estate attorneys at Aronow Law PC. We can assist you in determining if filing for a partition action in New York is the best way to protect your property rights.

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Issues to Consider Before You Sign a Commercial Lease

When you discover the perfect commercial location, the need to act fast can result in hasty decisions with lasting repercussions. If you’re ready to sign a commercial real estate lease for a retail space, office building or other commercial property, take a few minutes to consider the items on this list before you put pen to paper. After you sign the commercial lease, it’s too late to make changes to the terms of the agreement.

  1. Did you read the entire lease agreement? Many landlords will use standard lease agreements with general terms for all their leases. If you have negotiated any special terms or there are any special considerations that have been discussed, make sure they are addressed specifically in the document. If they are, make sure that the specifics that were added aren’t contradicted by any of the standard language included in the lease. Never assume the seller got everything right: check the dates, check the rent and rent escalation, and any special terms you have negotiated. Also check that you and the landlord are clear (and that clarity is reflected in the lease agreement) on each party’s obligations regarding the property during the term of the lease. Check the lease for options for terminating the agreement. Make sure they are included and that you are aware of what the process/consequences are if the situation arises.
  2. Does the lease represent the best possible deal? Many terms of the lease are still negotiable. Read through the lease agreement and make a list of any terms or provisions that are don’t like and send the list to the landlord. Many will be willing to make significant changes at this stage.
  3. Is your business structure in place? Before you sign a commercial lease, make sure your business structure is in place so you can take advantage of the protections afforded by the corporate structure.
  4. Do you understand the terminology in the lease? For example, most leases will use the term CAM. This stands for Common Area Maintenance. When leasing a commercial property, you should be allocated a percentage of the CAM as your responsibility based on the percentage of the building you will be leasing. Make sure the percentage is based on the size of the building and doesn’t vary depending on how much of the building is currently rented. Make sure that there are no fees included in the CAM section that would cover the landlord’s marketing efforts of legal fees in connection with other leases on the property. Administration fees included should be 3% or less and you should not be expected to pay for benefits for the landlord’s employees or build out costs for other lease units on the property.
  5. Do you understand your responsibility for capital expenditures? In a commercial lease, capital expenditures generally refer to major structural costs like roof replacement or repair, foundation issues, HVAC, etc. It is best to attempt to avoid signing a lease that shifts the responsibility for these types of repairs to the tenant. If the landlord is requiring you, as the tenant, to cover these capital expenditures, consider negotiating a compromise. You might suggest a maximum amount for tenant responsibility per year or decrease tenant responsibility in exchange for including a regular maintenance responsibility.
  6. Is the lease assignable? Are you allowed to have a sublessee? Does the landlord retain the right to cancel your agreement if you ask for an assignment? The location of a business can be a big part of its overall value. This can be a major issue if you decide to sell your business in the future.
  7. Is there an arbitration clause? These clauses require that parties involved settle any disputes with arbitration instead of litigation. The lease contract may specify that the arbitration clause is mandatory. If so, make sure it also specifies that you will have the right to participate in the selection of an arbitrator and other decisions related to settling any potential dispute without litigation.

 

Commercial lease agreements can seem extremely one-sided and tedious, but many of the provisions are there for good reason. If you need help negotiating a commercial lease or reviewing your commercial lease agreement before signing, please get in touch with one of the experienced New York real estate attorneys at Aronow Law PC today.

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Avoiding Common Title Problems

When you purchase a home, it is often life changing. It’s one of the most significant decisions most people make in their lifetimes (both financially and emotionally). Make sure that you are protected when you take the momentous step towards homeownership by avoiding common title problems that many experience during the home buying process.

5 Common Title Problems During the Home Buying Process:

  1. Unpaid Liens: Existing liens are a frequent challenge during the sale and purchase of homes in the United States. Liens can originate from various sources, such as Homeowner Association fees, unpaid taxes, etc. Potential monetary responsibilities related to the property you are considering purchasing should be discovered through a thorough title search to avoid issues at a later date.
  2. Breaks in the Chain of Title: Ownership of a home can change hands numerous times; sometimes by being passed down as an inheritance other times through a sale. As the property passes from owner to owner, the chain of title is developed. When a link in this chain is missing or broken, problems can crop up during the closing process.
  3. Inaccurate Legal Description: Properties have legal descriptions recorded in the local court system. The legal description includes boundary lines, dimensions of the structure, permanent outbuildings on the property, etc. In some case, the legal description of the property at hand may include an error. These seemingly insignificant errors can cause problems during closing. A simple typo changing a directive from east to west can disrupt the purchase process.
  4. Issues with Foreclosed Properties: When purchasing a foreclosed property, homebuyers may discover that there are additional issues that can disrupt closing. Lenders may not have notified all parties involved. The title might not be taken from the original owner. There may be other chain of title problems.
  5. Construction Liens: Home improvements are a regular occurrence. In fact, they’re very common just prior to selling a home. Homeowners seeking to get the highest price will often make needed repairs and/or renovate just prior to listing their home for sale. Unfortunately, some contractors handling this type of project may not pay their suppliers or subcontractors in full for products supplied or work completed. This leaves unpaid suppliers and/or subcontractors with the option of obtaining a lien against the property. This can obviously pose a problem for the new homebuyer during closing.

 

These common title problems occur on a regular basis – and they carry a great potential for unnecessary stress on closing days for new homeowners. Title problems can result in delays in the purchase process and can also have financial consequences for buyers.

Get in touch with an experienced real estate attorney at Aronow Law PC. We can help you determine your best options when negotiating real estate law.

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