Real Estate Law

Real estate law governs the ownership, use, transfer, and development of
land and the structures upon it. Because real property is unique and
immovable, the legal principles governing it emphasize certainty,
recordation, and the protection of investment-backed expectations.

## Key Points

- **Conduct thorough title examination**: Review the chain of title for
- **Draft and negotiate purchase agreements carefully**: Address price,
- **Perform comprehensive due diligence**: Beyond title, investigate zoning
- **Structure financing documents precisely**: For lender-side representation,
- **Navigate zoning and land use approvals**: Guide clients through variance
- **Draft and review lease agreements thoroughly**: Commercial and residential
- **Manage closings efficiently**: Prepare closing checklists, coordinate with
- **Resolve title disputes and boundary issues**: When title defects or
- Obtain title insurance on every acquisition. Even thorough title
- Review surveys carefully and compare them to the title commitment, the
- Include appropriate contingencies in purchase agreements to protect the
- For commercial transactions, prepare a comprehensive due diligence

Core Philosophy

Real estate law governs the ownership, use, transfer, and development of land and the structures upon it. Because real property is unique and immovable, the legal principles governing it emphasize certainty, recordation, and the protection of investment-backed expectations.

Effective real estate practice requires understanding that every transaction is local. Property law varies dramatically by state and even by municipality. Recording requirements, title insurance practices, closing procedures, zoning codes, and landlord-tenant statutes differ in ways that can determine whether a transaction succeeds or fails. The competent real estate attorney masters the law and customs of their jurisdiction.

Due diligence is the foundation of every real estate transaction. Whether representing a buyer, seller, lender, or tenant, the attorney must investigate the property's legal status, physical condition, environmental history, and regulatory compliance before the client commits. Problems discovered after closing are exponentially more expensive to resolve.

Key Techniques

• Conduct thorough title examination: Review the chain of title for defects, liens, encumbrances, easements, and restrictions. Identify issues that must be resolved before closing and those that title insurance will cover.

• Draft and negotiate purchase agreements carefully: Address price, financing contingencies, inspection periods, title requirements, closing date, representations and warranties, and remedies for default. Every term should reflect the parties' negotiated understanding.

• Perform comprehensive due diligence: Beyond title, investigate zoning compliance, building code violations, environmental contamination, survey discrepancies, property tax assessments, and pending municipal actions that could affect the property.

• Structure financing documents precisely: For lender-side representation, ensure that mortgage or deed of trust documents, promissory notes, and security agreements are properly drafted and recorded. For borrower-side work, negotiate loan terms and review covenants carefully.

• Navigate zoning and land use approvals: Guide clients through variance applications, special use permits, rezoning petitions, and site plan approvals. Understand the political dynamics of zoning boards and planning commissions as well as the legal standards.

• Draft and review lease agreements thoroughly: Commercial and residential leases require different approaches. Address rent, term, renewal options, maintenance responsibilities, use restrictions, assignment and subletting, default remedies, and security deposits with jurisdiction-specific compliance.

• Manage closings efficiently: Prepare closing checklists, coordinate with title companies, review settlement statements, ensure proper execution and acknowledgment of documents, and verify that all conditions to closing have been satisfied.

• Resolve title disputes and boundary issues: When title defects or boundary disputes arise, use quiet title actions, boundary line agreements, corrective deeds, and title insurance claims to protect the client's interests.

Best Practices

• Obtain title insurance on every acquisition. Even thorough title examination cannot uncover all defects, such as forgeries, undisclosed heirs, and recording errors that title insurance covers.

• Review surveys carefully and compare them to the title commitment, the legal description in the deed, and the actual physical condition of the property. Discrepancies must be resolved before closing.

• Include appropriate contingencies in purchase agreements to protect the buyer. Financing, inspection, environmental, and title contingencies provide escape routes if due diligence reveals problems.

• For commercial transactions, prepare a comprehensive due diligence checklist covering title, survey, environmental, zoning, financial, lease, and physical condition items. Track completion and share findings with the client regularly.

• Verify that all parties have proper authority to execute transaction documents. Corporate resolutions, partnership agreements, trust instruments, and powers of attorney must be reviewed and confirmed.

• Record documents promptly after closing. Priority of recording determines priority of interests in most jurisdictions, and delays in recording create risk.

• Maintain relationships with title companies, surveyors, environmental consultants, and local government officials. These relationships facilitate efficient transactions and problem resolution.

• Stay current on changes to landlord-tenant law, which has evolved significantly in many jurisdictions with new rent control provisions, eviction protections, and habitability requirements.

Anti-Patterns

• Skipping title examination: Relying solely on title insurance without reviewing the title commitment and underlying documents leaves the client unaware of easements, restrictions, and encumbrances that affect use and value.

• Using form agreements without customization: Standard purchase and sale agreements and leases contain default provisions that may not serve the client's interests. Every form must be reviewed and modified for the specific transaction.

• Ignoring environmental liability: Failing to investigate environmental conditions through Phase I and Phase II assessments can expose buyers to Superfund liability that exceeds the property's value.

• Inadequate survey review: Accepting a survey without comparing it to the title commitment and physical inspection can result in purchasing property with encroachments, easements, or boundary disputes that diminish value.

• Failing to address zoning compliance: Assuming that existing use is legally conforming without verification can result in costly surprises when the client seeks permits for renovation, expansion, or change of use.

• Neglecting security deposit requirements: Landlord-tenant statutes impose specific requirements on security deposit handling, including separate accounts, interest payments, and itemized deduction statements. Non-compliance can result in penalties exceeding the deposit amount.

• Rushing to close without resolving title issues: Closing with known title defects and relying on post-closing cure is risky. Title issues are always easier to resolve before the seller has received proceeds.

• Ignoring lease subordination and estoppel: In commercial acquisitions involving tenanted property, failing to obtain tenant estoppel certificates and review lease terms can result in unanticipated obligations and below-market rent commitments.