Brokers, Contracts & Mortgages
Real estate law includes both federal and state issues, with the state-level rules varying widely from jurisdiction to jurisdiction. These state and federal laws encompass everything from ownership of land and buildings to related issues such as financing, leasing, construction, taxes, environmental rules, and a multitude of others. A competent and experienced real estate attorney can protect a party’s interests in both routine and complex transactions and disputes.
A seller may employ a real estate broker to obtain a buyer for his or her property. The seller and the broker sign a listing agreement, obliging the broker to work to find a buyer and the seller to pay the broker’s commission if a sale results. A buyer may employ a real estate broker to locate suitable property. Real estate brokers are generally subject to rigorous licensing standards established by each state. As an agent, a real estate broker or salesperson has duties and obligations to the person who hired him or her. If an agreement to purchase the property is made, that agreement is strictly between the seller and buyer, and the broker is not a party to that agreement and generally makes no promises about the property.
Contracts and Transfers
The agreement to sell between a real estate buyer and seller is governed by the general principles of contract law. The Statute of Frauds requires that real property contracts must be in writing. Title to real estate must be marketable, which means that it must be free and clear of all encumbrances, liens, clouds, litigation risks, or other title defects. To ensure marketable title, the buyer typically employs an attorney or a title insurance company to perform a title search. In a title search, the searcher examines the public records in the county in which a property is located, mapping a chain of title by examining all the recorded deeds concerning the property. The title searcher will also determine if there are any encumbrances on the property, such as mortgages, unpaid real estate taxes, liens for municipal improvements, unpaid federal taxes, government claims, legal judgments, foreclosures, condemnations, covenants, and easements. A title insurance company will insure the buyer against losses caused by the title being invalid.
In order to pass title, the seller must execute and deliver a deed with a proper description of the land. Many states require that the deed be officially recorded to establish ownership of the property and provide notice of its transfer to subsequent purchasers.
The most common method of financing a real estate transaction is through a loan secured by a mortgage on the property. A mortgage involves the transfer of an interest in land as security for an obligation. A borrower typically repays a mortgage in installments that include both interest and principal payments. If the borrower doesn’t make payments, foreclosure can result, with the lender declaring that the entire mortgage debt is due immediately. Failure to pay the mortgage debt once foreclosure occurs leads to the sale of the property to pay for any remaining mortgage debt. The actual foreclosure process depends on state law, the terms of the mortgage, and whether other liens exist on the property. Many states allow late payments to avoid foreclosure, and many lenders attempt to work out a payment plan in order to avoid a foreclosure. If a lender is threatening foreclosure, a borrower should immediately contact a competent and experienced real estate attorney to protect the borrower’s interests and pursue all available resolutions.
Real estate transactions and disputes involve many laws, which vary greatly from state to state. If you are buying or selling real estate or are involved in a dispute regarding a real estate interest, it is in your best interest to get in touch with an experienced real estate attorney to ensure that your rights are protected.
DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be construes as legal advice. Seek competent legal counsel for advice on any legal matter.
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