What is Real Estate Law?
Real estate law is the area of law that governs buying, using and selling land. It’s the law that governs how people acquire property and what they can do with the property that they own. Real estate law is also called real property law.
Real estate law is called real estate because it’s about real property. Real property is land as opposed to personal property which is objects. Fixtures that are permanently on the land like buildings or other large structures are also a part of real property. There are many different aspects of real estate law like deeds, titles, purchase financing, zoning, taxes and estate planning.
Real estate law is state law
Lawyers who practice real estate law must know the state law that applies to their case. State laws are the primary laws that apply to real estate. There are some federal laws that universally apply to real estate law throughout the United States like the Interstate Land Sales Full Disclosure Act. However, most real estate law comes from state laws. Real estate law can vary considerably from one state to the next. Attorneys in the field must know how to identify the law that applies and be careful of any nuances that are unique to state or local law.
What is a deed in real estate law?
A deed in real estate law is a document that gives someone a legal right to real property. A deed is the official document that grants an ownership interest in land. Most states have laws that govern how to create, execute and record a deed. A deed must be drafted carefully with a clear description of the property and the type of ownership that the parties are transferring.
Sometimes, a deed comes with a promise that the owner has a valid title to the property. A deed with that kind of guarantee is called a warranty deed. Other times, a property owner just wants to release any interest that they may have in a deed if they even have any ownership interest at all. That kind of deed is a quitclaim deed.
The kind of deed that you receive is crucial to the type of purchase that you make when you acquire property. A real estate attorney must know how to research title to a property and advise their client on the type of transaction they’re considering. If a buyer learns after the fact that the seller doesn’t actually have the title that they sold, the result can be litigation and other claims of damages.
Holding title to a property
When a real estate lawyer works on behalf of a client, they must help their client meet their goals. For example, a couple may wish to purchase property together. The couple should purchase the property as tenants by the entirety or joint tenants with right of survivorship. That way, if one spouse passes away, the other spouse automatically gets their interest in the property. There are some differences between the two types of ownership, and a real estate attorney should help a couple carefully determine if they should own property as tenants by the entirety or as joint tenants with right of survivorship.
Another way to own property with others is for each owner to own an individual share. This type of tenancy is called tenancy in common. A person who owns property with tenancy in common can mortgage or sell their individual share of the property.
A property owner can also give someone a life tenancy. For example, you can transfer property to someone for their entire lifetime to be followed by giving the property to someone else. You can also put conditions on a transfer of property. For example, you can transfer property to someone with the condition that they use the property for a certain purpose. If they don’t use the property for that purpose, the original owner reserves the right to transfer the property to someone else or take it back.
With so many options, the wording of any deed or contract of sale is very important. A real estate lawyer must be good with words. Even a single word can make a big difference when it comes to real estate law. Writing, reading and critical thinking skills are critical for real estate lawyers
Zoning in real estate
Along with ownership issues in real estate, real estate attorneys must also work with restrictions that control what property owners may do with their property. A major restriction on property use is zoning. Within the large zoning categories of residential, commercial and industrial, there are often subcategories with detailed requirements and restrictions. Most zoning occurs on the local level, so real estate attorneys must work with local government and zoning boards in order to challenge restrictions and advance client interests.
Taxes in real estate
Real estate is often subject to tax. The amount of tax that a government levies on a parcel of real estate can be a legal issue for a real property holder. Even helping a client with a tax exemption can be important work for a real estate attorney. Real estate attorneys help challenge taxes on real property through tax appeal boards and legal proceedings.
Homeowners associations in real estate
Some property restrictions are voluntary and private. Homeowners often enter into association agreements in order to preserve the character of a neighborhood. Even though homeowners buy into associations voluntarily, there may still be disagreements about covenants, restrictions and enforcement. Attorneys represent homeowners associations as a whole or individual homeowners who wish to create, challenge and enforce restrictions.