Services offered:
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Residential and Commercial Real Estate Law
Ridley, Chuff, Kosierowski & Scanlon, P.C. offers professional services related to the purchase and/or sale of commercial and residential real property, financing of commercial and residential real property, commercial leasing and tax assessment disputes.
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 sel-ler'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 though-ts and arrange all of the information you receive. The HUD Home Scorecard can help you develop your question list.
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:
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
Marketable Title and How It Is Affected by Liens
What Is Marketable Title and How Is It Affected by Liens?
Most agreements for the sale of real estate contain a clause that requires the seller to convey —marketa-ble title? or "merchantable title" to the buyer. In essence, "marketable title" refers to a title free of en-cumbrances. A lien is an encumbrance upon real property and the existence of a lien on real property renders the title unmarketable.
Perhaps one of the most common types of liens is a judgment lien. If a creditor succeeds in a lawsuit against a debtor, the court enters a judgment in favor of the creditor. A judgment is a judicial declara-tion that the creditor is entitled to a specified sum of money from the debtor. A judgment lien arises when a judgment creditor follows the procedure set forth in the applicable state law and obtains a judgment lien against the property of the judgment debtor. A lien may be obtained by the judgment creditor as to the real property, as well as the personal property, of the judgment debtor. The laws go-verning liens and the recordation of liens vary from state to state.
Types of Liens
A few different types of liens are:
Judgment Liens
Environmental Liens
Equitable Liens
Mechanic's or Material man's Liens
Tax Liens
What 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 over-looked, the title insurance protects the owner from the claim. Remember that if it’s not in writing on a real estate deal, it’s not enforceable.
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
In some states, a deed of trust is used instead of a mortgage. If there is a mortgage on the property, the deed references the lender. The name of the owner is put on the deed only when the loan is paid off.
Home Title Insurance
Home Title insurance is usually required by the lender to protect the lender against loss resulting from claims by others against your new home. In some states, a real estate lawyer or home title insurance lawyer offers title insurance as part of their services in examining title and providing a title opinion. The attorney's fee may include the title insurance premium. In other states, a home title insurance company or title agent directly provides the home title insurance.
Disclosures in Residential Real Estate Transactions
One of the biggest decisions in a person's life is the decision to buy real estate. The excitement that is often associated with the purchase of a new home can be overshadowed by disappointment once the newness wears off and defects become apparent. Generally, the rule of "caveat emptor" — buyer be-ware — requires the buyer to conduct a reasonable inspection of the premises to discover defects and imperfections. In short, the buyer assumes the discoverable risks. In some circumstances, however, the seller and the seller's agents may be liable to the buyer.
Seller's Duties
In a real estate contract, a seller represents to the buyer that the seller owns the title to the property be-ing sold and that the title is marketable and free of defects. As for the property itself, state laws impose varying responsibilities on a seller to disclose known defects to the buyer. Some states require disclo-sure of all defects known, while other states only require disclosure if the buyer asks about defects. If, for example, the buyer asks about whether there has been any flooding or termite infestation in the past, the seller must answer in good faith.
Disclosure Duties of the Seller's Broker and Agent
The seller's broker and agent work for the seller and have a duty to act in the seller's best interests. The seller's broker and agent do not usually work for the buyer. With respect to disclosure of defects, the broker's duty generally follows the seller's duty to disclose known material facts unless a state law re-quires additional disclosures. Some states require the broker and/or agent to conduct a thorough inspec-tion of the premises to identify the true condition of the property.
Violation of the duty to disclose
If the seller, broker, or agent violate the duty to disclose, either or all of them may be liable for damag-es and the buyer may be entitled to rescind, or cancel, the contract.