Real Estate Law
From a starter home to investment houses to commercial buildings, buying real estate is one of the biggest financial investments many of us make: it is an investment of time and money. Our goal at DeWitt Law is to assist you in making the most of your investment by providing advice and counsel with respect to the acquisition, development, financing, leasing, and sale of property. We certify real estate title, represent buyers and sellers in real estate purchases and sale transactions. We negotiate, draft, and review purchases, financing and loan documents, leases, management agreements, construction contracts and sale contracts for buyers and sellers.
Real Estate Law Basics
Residential Real Estate Transaction
Real Estate Agent Downloads
Information on Mortgage Fraud
Information on avoiding Foreclosure
The Basics
What is real property?
Real property is typically described as land and things permanently attached to it also termed improvements such as homes, garages, and buildings as well as items beneath the land (such as gas, oil, minerals). Other items which can be attached to the land, such as mobile homes and tool sheds, are not considered to be real property.
What does owning real property consist of?
First and foremost because it is yours you can do what you want to with it as long as it is within the restrictions of the law. Such uses include: rent or lease it to others; sell or transfer it; give it away; use it as collateral for a loan; leave it to your beneficiaries (by will or trust upon your death); let it sit where it is without doing anything to it (although this could create problems due to restrictions imposed by the law).
Some typical restrictions imposed by law on owning real property
There are many laws that restrict what you can do with your real property. Enforcement of these laws typically resides with various governmental agencies that are responsible for keeping you in compliance with these laws. Three typical restrictions imposed by the government are:
- Zoning - This restricts how you can use your real property in terms of residential, industrial, agricultural, or commercial purposes along with the size and height of improvements attached to the property.
- Environmental hazards - what materials can be stored on the real property as well as who is responsible for removing environmental hazards from real property (such as asbestos, lead paint, petro-chemicals, radon and toxic wastes) are government regulated.
- Public easement and right of way - a portion of the real property may have to be left open for others to use. Easements and right of way are used to allow access to other property, to provide for roads and sidewalks, and to enable electric/gas/telephone/sewer lines to be installed.
Common forms of fee simple ownership include:
- Sole Ownership: Real property is owned by one person. This can be worded differently depending on you status as: a single individual (never been married) for example "Carol, a single woman…"; an unmarried person (previously been married); married person gaining sole and separate property (married but getting property in your name alone-therefore, spouse gives up right, title or interest).
- Joint Tenancy with Right of Survivorship: Property owned equally by more than one person. When one joint tenant dies, his/her interest automatically goes to the surviving joint tenant(s) by operation of law. Words in the deed such as "John and Mary, as joint tenants with right of survivorship and not as tenants in common" shows title in joint tenancy.
- Tenancy in the Entirety: some states, including North Carolina, have a unique type of joint tenancy when the joint tenants are married -- allowing each to own one-half. Real property can not be sold without the agreement of both tenants.
- Tenants in Common: This allows for more than one person to have ownership however, unlike joint tenancy the ownership does not have to be equal; in turn the interests and right to possess and enjoy the property between the tenants in common do not have to be equal. Also unlike joint tenancy upon death, the decedent's interest does not automatically go to the other tenant members instead it passes to his/her heirs named in the will who then become new tenants in common with the surviving tenants in common.
The Residential Real Estate Closing Transaction
What services we perform?
We are responsible for conducting the title examination of the property, ensuring that the deed of conveyance and the loan documents have been properly prepared and executed, that the closing funds are properly received and disbursed pursuant to the HUD-1 Settlement Statement to be prepared by us and reviewed by the client at closing, that the map of survey (if one is required) is ordered and reviewed by us prior to closing, and that the deed and deed of trust (mortgage) are duly recorded and the owners' and lender's policies of title insurance are issued and delivered in proper form. We will furnish payoffs of the outstanding liens, along with cancellation of lien instructions to the proper creditors; however, in the event the creditor does not comply with our cancellation instructions we will not pursue the creditor without being further retained by the buyer or seller.
We will not act as escrow agent for the purpose of holding money for repairs or any other problems which are to be resolved after the closing. It has been our experience that holding money in escrow for post-closing issues frequently leads to greater dispute and lawsuits. Your best course of action is to resolve these issues prior to closing.
The title examination
In North Carolina, only a licensed attorney can certify title and give an opinion on that title. Typically, we conduct a full title examination of the property in compliance with the North Carolina Marketable Title Act. This means that we will search the title for a period of no less than thirty years prior to closing. However, if we find an existing policy of title insurance on the property, we will, unless you object, "tack" to that policy. This means that our title examination would begin with the date and time of issuance of that policy and that we will not certify the status of the title to the property prior to that date. While defects in the title occurring prior to the search period would not be reported by us if we "tack", they should be covered by the existing title policy, so you should receive the same title insurance coverage as if we had conduced a full title examination.
Obviously, "tacking" onto a prior policy enables us to conduct the title exam with increased ease, and it should not expose you to any increased liability. "Tacking" also saves you money because title companies charge less to re-issue coverage from a prior policy forward. Unless you immediately instruct us otherwise, we will tack or conduct a full title exam at our discretion. (Title exam does not include any investigation into zoning or building code compliance for the property; these are issues for your property inspectors to investigate.)
Real Estate Agent Downloads
To schedule a closing, please get in touch with our office via our contact page or call us at 919.338.8200.