Posts Tagged ‘land use’

1. What questions should I ask when looking at homes?
2. What is a purchase offer?
3. What is a title examination?
4. What is title insurance and why do I need it?
5. What good is title insurance?
6. Why is a deed required?
7. What is the difference between a General Warranty Deed, Special (Limited) Warranty Deed, and Quit Claim Deed?
8. How should my name appear on the deed?
9. What is a survey and why should I pay for one?
10. What is an easement?
11. If I have an easement over someone else’s property why do I need it?
12. If someone else has a properly recorded easement over my property, what are my obligations and rights with respect to that easement?
13. What is an escrow agent?

 

 

 

 


1. What questions should I ask when looking at homes?

Many of your questions should focus on potential problems and maintenance issues. Does anything need to be replaced? What things require ongoing maintenance (e.g., paint, roof, HVAC, appliances, carpet)? Also ask about the house and neighborhood, focusing on quality of life issues. Be sure the seller’s or real estate agent’s answers are clear and complete. Ask questions until you understand all of the information they’ve given. Making a list of questions ahead of time will help you organize your thoughts and arrange all of the information you receive. The HUD Home Scorecard can help you develop your question list.

2. What is a purchase offer?

A purchase offer or agreement contains all the details of the offer to purchase a piece of property. An agreement is binding only once the document has been agreed to and signed by the buyer and seller. Often in the purchase of real estate, there are a number of offers and counter offers until an agreement is reached.

Items and conditions that are often included in the purchase offer include:

  • Description, legal and common, of the property.
  • Purchase price.
  • Earnest money.
  • Features and fixtures which are to remain.
  • Home inspection results.
  • Anticipated financing.
  • Closing date.
  • Final inspection and move-in condition.
  • Penalties for breaking the offer.
  • Response time to accept the offer.
  • Obtaining clear title to the property.
  • Clean inspection report.

3. What is a title examination?

A title examination is a study of the records related to the ownership history of a piece of property and sometimes of other matters related to ownership interests in the property. An abstract of title is a collection of public records relating to the ownership of a parcel of real estate. During the examination, the applicable title information is examined to determine who owns the lands, whether there are any defects in or claims against the ownership and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.

4. What is title insurance and why do I need it?

A title insurance policy, simply put, insures the status of title in the name of the owner of the policy. Title insurance policies are issued by title insurance companies. The title company contracts with the insured person named in the policy to protect the title as insured against financial loss, as well as the cost of defending the title in court. The title company searches and examines documents related to the ownership of and items affecting the property. It provides a source of indemnification to the named insured if he or she is damaged by a negligent or bad title search or examination and also from hidden defects that would not be discovered in a title search. For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy.

5. What good is title insurance?

A title search and the issuance of title insurance means the ownership of the property can be cleanly conveyed to the new owners. During the search, the history of the property is researched verifying that all previous claims or liens have been satisfied, allowing a clear title to be issued. If any claim is overlooked, the title insurance protects the owner from the claim.

6. Why is a deed required?

A deed transfers ownership of property from one owner to the next. Deeds are recorded in the county where the property is owned. There are three types of deeds:

  • Full covenant and warranty deed – which guarantees no other person owns or has claims against the property.
  • Bargain and sale deed – used in some states but does not guarantee that the property is free and clear of any claims.
  • Quit claim deed – transfers interest in a piece of property from one owner to the next. A quit claim deed provides no guarantee from other interests or claims.

7. What is the difference between a General Warranty Deed, Special (Limited) Warranty Deed, and Quit Claim Deed?

Title will generally be transferred by a general warranty deed. A general warranty deed guarantees the grantor’s good title before and after the conveyance and contains covenants concerning the quality of title. The usual guarantees or warranties by the seller are: good title, freedom from encumbrance other than as specifically identified, and right of possession to the buyer as against all others. The warranty includes any claims arising prior to the grantor’s ownership.

A special warranty deed (sometimes referred to as a limited warranty deed) provides less extensive warranties than the grantee receives from a general warranty deed. Under a special warranty deed, the grantor warrants only against claims arising during the period in which the grantor held title, while under a general warranty deed the grantor warrants against all claims whenever arising, even if prior to the date the grantor himself or herself took title.

A quit-claim deed contains no warranties of any kind and conveys only the interest, if any, held by the grantor (for example, if the grantee actually had no interest to convey, the quitclaim deed would not vest any ownership in the grantee). The quit-claim deed does not convey after-acquired title and is not typically used for residential real estate transactions, except to correct errors.

8. How should my name appear on the deed?

Make sure you carefully identify all parties taking title, and how title is to be held. The following are examples of common manners in which title is held:

Sole Owner. Under this approach, title is taken in the name of only one individual grantee and is freely transferable or subject to encumbrance by that grantee.

Joint Ownership with Right of Survivorship. Title can be taken in multiple names under this approach. Any joint tenant can freely transfer his or her fractional interest in the property during his or her lifetime, and any such transfer will terminate the joint tenancy to the extent of the interest transferred. A joint tenant cannot transfer his or her interest by will since a joint/survivorship interest passes by law automatically to the surviving joint tenants on a joint tenant’s death. A joint tenant can only encumber his or her proportionate interest in the property. Also, note that equal ownership shares is presumed unless the deed states otherwise (for example, if there are two grantees, each grantee will own a one-half interest).

A joint tenancy is created and exists only if four essential characteristics exist: (1) unity of joint ownership and control; (2) the interests held must be the same; (3) the interests must originate in the same instrument; and (4) the interests must commence at the same time. If all or any of these characteristics do not exist, the owners will own the property as tenants in common.

Tenants by the Entireties. Title can be taken as tenants by the entireties only by a validly married husband and wife. If a transfer of this type is attempted but the grantees are not validly married, or if they become divorced, the title reverts to tenants in common. Neither tenant can transfer his or her interest to a third party or encumber the property without both parties joining in the deed or mortgage. Upon death of one party, the property automatically becomes the sole property of the survivor. This is a common form of ownership among married couples, except in community property states.

Tenants in Common. Estates held as tenants in common are freely transferable or subject to encumbrance (as to the transferring tenant’s own interest) by each tenant. There is no right of survivorship in the surviving tenants upon one tenant’s death. Also, note that equal percentage ownership is presumed unless the deed specifically states otherwise (for example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest). It is always best to state each co-owner’s percentage ownership interest in the deed to avoid any uncertainty or misunderstandings.

9. What is a survey and why should I pay for one?

A survey is a drawing of the property which should show any improvements to the property (such as buildings, driveways and the like), the boundary lines of the property, and any encroachments affecting the property (whether items encroaching on the property by third parties or encroachments by the property against a neighboring property). The surveyor may certify to many things, such as : (i) the improvements are all located within the boundary lines; (ii) which flood zone in which the property is located; (iii) whether the structures are in compliance with applicable laws; or (iv) whether the property has access to a public right or way. Encroachments on the property may include: (i) utilities (such as water, cable, electricity, and telephone lines); (ii) another party’s right to enter upon your property (such as a common drive way that the property may share with a neighboring property); or (iii) structures not being conveyed with the purchase of the property that are on the property and should not be (such as the fence of a neighboring property).

If you are financing any portion of the purchase of the property, your lender will most likely require that a survey be obtained prior to closing. In some instances, if the current owner of the property has a recent survey of the property the lender will accept such survey (or perhaps a current recertification of the prior survey) and new survey costs may be avoided or at least minimized.

10. What is an easement?

An easement is an interest in land owned by another person, such as the right to use or control the other person’s land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road or to share a common drive with a neighboring property). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it usually does not give the holder the right to exclusively possess, take from, improve, or sell the land. Some common easements may include: (i) a right-of-way; (ii) a right of entry; (iii) a right to the support of land and buildings; (iv) a right of light and air; or (v) a right to water. The owner of the servient estate is normally free to use his/her property as he/she chooses, provided that use does not impair the rights of the holder of the dominant estate.

11. If I have an easement over someone else’s property why do I need it?

You may have an easement over someone else’s property for several reasons. One of the most common reasons may be for access to a public right of way for a property which otherwise might be landlocked. Check your survey or ask your title company if you are unsure what any identified easement is for. Also, make sure that every easement benefiting your property over someone else’s property is reflected on Exhibit A to Schedule A of your title insurance policy. One of the items insured by an owner’s policy of title insurance is legal access to the insured property.

12. If someone else has a properly recorded easement over my property, what are my obligations and rights with respect to that easement?

Your obligations to the party benefiting from the easement over the property you are purchasing depend on the written agreement creating the easement.

If the survey of the property reflects a path labeled “easement” but no document is of record creating the easement you will want to inquire as to where the surveyor obtained the information about this easement. If the unrecorded easement is shown on the survey the title company will likely list this unrecorded easement on your title policy as an exception to coverage, which means that if someone was to claim the right to use this easement your title insurance would not pay to resolve this issue.

13. What is an escrow agent?

An escrow agent is typically a third party designated to hold an item (usually funds, but sometimes certain documents, such as a deed and/or mortgages) for a certain time or until the occurrence of a condition, at which time the escrow agent is to hand over the item to another party. Typically the escrow agent will be your title company, and the funds and documents that they are holding include any deposits you made under the contract to purchase the property, as well as the deed and their mortgage instruments.


 

 

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The attorneys at Widerman Malek, PL assist clients with a wide range of real estate services. We review and prepare real estate and construction contracts, issue title insurance as an agent for Fidelity National Title Insurance Company, act as an escrow agent and conduct real estate closings, litigate and defend real estate litigation claims, represent homeowners’ and condominium associations, and represent property owners in a wide variety of real estate, land use, zoning, building, permitting, use, and compliance matters.