An Overview on Real Estate Law

Legal considerations regarding commercial and residential property

Real estate law concerns physical land and the structures and resources on that land. We are all affected by real estate laws, though we likely don’t think about them until we are actively engaged in buying or selling property. A lawyer isn’t always required in a real estate transaction, but they can be helpful when you need to navigate unexpected situations.

Overview

Real estate law is governed by state regulations and is divided into two categories: residential and commercial. Both types involve mortgages and contracts, which can be negotiated with the help of a lawyer. In the unfortunate circumstances of foreclosure, discrimination or building defects, a lawyer can help an owner or buyer eventuate their legal options.

Residential

Common types of residential property include condos, townhouses, single-family houses and multi-family houses. Duplexes and fourplexes are considered multi-family houses, but anything more than four units is considered a commercial property.

The home-buying process can vary by state, but usually both the buyer and seller will hire real estate agents to assist them with the process. Occasionally, parties may choose to, or be required to, hire a real estate attorney. While buying and selling a home is a routine process, you may encounter situations that could cause a dispute or delay in the process. You may want to consider speaking with a lawyer to help you understand your options should any of these situations arise.

Discrimination

The Fair Housing Act prohibits discrimination against prospective buyers based on certain protected characteristics, which include

  • Race
  • Religion
  • National origin
  • Sex
  • Familial status
  • Disability

Discrimination can be overt, such as advertising that requests applicants of only one sex or religion or race. However, more often discrimination is subtle. For example, a seller who turns away every prospective buyer of one race could be found to be discriminating even if they aren’t explicitly asking for applicants of only specific races.

Failure to disclose

Sellers are required to disclose defects a home may have; they are required to be upfront about past or current issues with the house and any repairs to protect themselves from future lawsuits and to inform the buyer about potential issues they may have to deal with when becoming the owner of the home. Common disclosures include

  • Liens
  • Property disputes
  • Mold
  • Lead paint
  • Leaks
  • Electrical malfunctions
  • Weather damage

It is better for a seller to over-disclose, though they may want to consider discussing disclosures with a lawyer. Likewise, buyers who believe they have discovered something that should have been disclosed might also want to speak with a lawyer.

Construction defects

Construction defect claims are like failure-to-disclose cases, but they are more common with new construction. These types of claims can range in severity from peeling paint or warped baseboards to foundation problems that make the house dangerous to live in. They can also be complicated because you may have to decide who to hold liable within a specified period of time. An experienced real estate lawyer will be able to help you evaluate your claim and instruct you on the relevant time limits in your state.

Commercial

Commercial real estate is property used for a business purpose, that the owner expects to make a return on. Common examples of commercial real estate are stores, office buildings, industrial parks and apartment buildings. The most common legal issues in commercial real estate involve land disputes or issues with a lease. A basic commercial lease will include rent and duration terms, but generally, parties cannot use a standard lease form for all transactions because the provisions will have to be tailored to the specific intended uses of the property. For example, in a strip mall, a landlord’s lease with Business A may limit the services Business B can offer, and that must be reflected in the lease. Zoning and land use rules can also place limits on commercial real estate; follow this link for more information.

Mortgages

A mortgage is an agreement between a bank and a borrower. The bank loans the borrower money to purchase real estate, and the property is collateral for the loan. The specifics of your mortgage will depend on whether it is residential or commercial.

Residential

Residential mortgages are typically made to individuals. The debt is repaid in regular installments over a period, usually 30 years. However, lenders can usually repay their full mortgage before the loan’s maturity date without incurring a penalty.

Commercial

Commercial mortgages are made to business entities. In the event of a default, the lender may be able to recover from the owners; however, some loans stipulate that the lender can only recover from the property. Mortgages for commercial real estate sometimes require regular payments over the course of a few years with a lump sum payment of the remaining balance at the end of the payment term. Commercial borrowers might face penalties for prepayment or early repayment to protect the lender’s anticipated earnings.

Foreclosure

In the unfortunate event that a lender cannot repay their mortgage, the lender may begin a foreclosure action to take possession of the mortgaged property. The process can vary by state.

There are methods through which a borrower can avoid or delay foreclosure after missing mortgage payments. Borrowers may be able to negotiate repayment plans with lenders or obtain a lower interest rate.

Common Questions

Below are some common questions you might want to consider when meeting with an attorney.

  1. How do I qualify for a loan?
  2. What do I do if my offer was rejected?
  3. What do I do if a seller discriminated against me?
  4. Can I sue a homebuilder for problems with my house?
  5. What do I do if I receive a notice of foreclosure?
  6. What do I need to disclose when I am selling my house?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can follow this link to the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a lawyer who specializes in real estate law.

Why Should I Talk to a Lawyer?

A lawyer can help you at all stages of a real estate transition—from running title checks to writing and negotiating purchase agreements. Your lawyer can also represent you in discrimination or foreclosure cases. If you are selling your property, your lawyer can walk you through mandatory disclosures and help you get the best value for your property.

A lawyer will further be able to anticipate potential problems with your case and advise you on how to approach them. He or she may even be able to help you avoid potential problems altogether. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.

Why Super Lawyers?

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. As Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public. You can learn more about the selection process here.

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